ii^'\ 


Calendar  No.  786. 


63d   Congress,  ) 
3d  Session.       \ 


SENATE. 


JRept.  898. 
I     Part  2. 


B&ncit>rt  Library 


DEVELOPMENT  OF  WATER  POWER. 


February  2,  1915. — Ordered  to  be  printed. 


Mr.  Works,  from  the  Committee  on  Public  Lands,  submitted   the 

following 

VIEWS  OF  THE  MINORITY. 

[To  accompany  H.  R.  16673.] 

The  report  of  the  majority  of  the  committee  states  the  object  of  the 
bill  as  follows: 

The  object  of  the  measure  is  the  better  and  speedier  development  for  useful  and 
beneficial  purposes  of  the  great  undeveloped  water  power  of  the  country,  now  lagging 
on  account  of  inadequate  and  inefficient  laws. 

If  this  were  the  real  object  and  purpose  of  the  bill  and  this  object 
would  be  attained  even  in  reasonable  degree  and  without  unwar- 
ranted and  dangerous  encroachments  by  the  National  Government  on 
the  constitutional  riiihts  of  the  States,  the  signers  of  this  minority 
report  of  the  committee  w^ould  not  be  found  contendina:  against  its 
enactment,  as  they  represent  a  constituency  that  is  vitally  interested 
in  the  development  of  all  natural  resources  and  their  application  to 
beneficial  uses,  freed  as  far  as  possible  from  hmitations,  obstructions, 
or  unnecessary  burdens  of  any  kind.  In  any  attempt  to  bring  about 
such  leirislation  we  should  carefullv  consider: 

1.  The  rights  of  the  States  in  tne  waters  flowing  through  them  in 
the  natural  streams  and  to  regulate  and  control  their  appropriation, 
divereion,  and  use. 

2.  The  limitations  of  the  National  Government  in  dealing  with  the 
appropriation,  regulation,  and  use  of  these  waters. 

3.  The  rights  of  the  people  of  the  States  to  the  use  of  the  waters 
of  the  streams,  as  provided  by  law,  commonly  called  the  consumers. 

But  after  all  and  in  the  last  analysis  it  is  the  consumer  that  should 
be  protected  and  his  individual  right  to  the  use  of  the  water  main- 
tained and  preserved  under  reasonable  rules  and  regulations  that 
will  insure  the  greater  and  more  beneficial  use  of  the  water  for  all 
legitimate  purposes. 

The  western  semiarid  States,  where  irrigation  is  necessary  to  their 
full  development  and  prpsperity,  are  peculiarly  and  vitally  interested 
in  making  every  drop  of  water  beneficially  useful,  and  in  supplying 
every  acre  of  land  possible  with  the  water  without  which  much  of 


2  DEVELOPMENT   OF   WATEK  POWEE. 

their  lands  are  sterile  and  unproductive.  This  being  true  it  must  be 
seen  that  these  States  are  interested  and  will  support  any  just  law 
that  will  extend  the  use  of  water  either  for  the  irrigation  of  their  land 
or  the  development  of  power.  And  if  it  were  believed  by  us  that  this 
bill,  if  it  should  become  a  law,  would  have  that  effect  without  violat- 
ing any  of  the  fundamental  and  constitutional  rights  of  the  States  it 
would  receive  our  earnest  and  united  support.  It  is  because  we  are 
fully  convinced  by  our  own  knowledge  of  the  subject  and  the  testi- 
mony taken  at  the  hearings  before  the  committee  that  the  bill  will 
not  conduce  to  the  better  or  speedier  development  of  the  water 
power  of  the  country,  but  will  hinder  and  retard  such  development, 
and  that  its  real  object,  purpose,  and  effect  is  to  usurp  by  the  Na- 
tional Government  the  rights  and  jurisdiction  of  the  States  in  and 
over  the  flowing  waters  of  the  streams  to  the  detriment  of  the  States 
and  to  water  consumers  that  we  earnestly  oppose  the  passage  of  the 
biU.  And  this  attempt  at  what  seems  to  us  to  be  revolutionary, 
detrimental,  and  unwise  legislation  is  so  far-reaching  and  important 
that  we  feel  it  to  be  our  duty  to  lay  before  the  Senate  our  reasons  for 
opposing  the  passage  of  the  bill. 

In  dealing  with  the  subject  we  assume  that  certain  fundamental 

f)rinciples  of  law,  controlling  in  their  influence  as  affecting  such 
egislation  as  this,  have  been  firmly  and  unalterably  established  by 
both  Federal  and  State  decisions.     They  are  as  follows: 

1.  The  ownership  of  flowing  water  and  the  right  to  dispose  of  and 
to  regulate  and  control  the  use  thereof  within  their  borders  belong 
exclusively  to  the  States  as  a  part  of  their  sovereign  power,  subject 
only,  in  case  of  navigable  streams,  to  the  power  of  the  Federal 
Government  to  regulate  and  promote  conmaerce  between  the  States. 

Pollard's  Lessee  v.  Hagan  (3  How.,  U.  S.,  212); 

Withers  v.  Buckley  (20  How.,  84); 

Escanaba  Co.  r.  Chicago  (107  U.  S.,  678); 

Kansas  v.  Colorado  (206  U.  S.,  46); 

Illinois  Central  Railroad  v.  Illinois  (146  U.  S.,  387); 

Shively  v.  Bowlby  (152  U.  S.,  1); 

Sands  v.  Manistee  River  Improvement  Co.  (123  U.  S.,  288); 

Veazie  v.  Moor  (14  How.,  U.  S.,  568); 

Hudson  Water  Co.  v.  McCarter  (209  U.  S.,  349); 

City  of  New  York  v.  Miln  (11  Pet.,  102); 

Gutierras  v.  Albuquerque  (188  U,  S.,  545); 

County  of  Mobile  v.  Kimball  (102  U.  S.,  691); 

Cardwell  v.  American  Bridge  Co.  (113  U.  S.,  205); 

Willamette  Iron  Bridge  Co.  v.  Hatch  (125  U.  S.,  1); 

United  States  v.  Railroad  Bridge  Co.  (6  McLean,  517). 

2.  That  as  a  consequence  the  United  States  have  no  such  right 
either  of  ownership,  regulation,  or  control. 

Pollard's  Lessee  v.  Hagan  (3  How.,  U.  S.,  212); 
Kansas  v.  Colorado  (206  U.  S.,  46); 
Ward  V.  Race  Horse  (163  U.  S.,  504). 

3.  The  rights  of  consumers  to  the  use  of  the  water  are  dependent 
upon  State  and  not  Federal  laws  and  subject  to  State  regulation 
and  control,  exclusively,  unless  the  use  is  interstate. 

Kansas  v.  Colorado  (206  U.  S.,  46); 

Osborne  v.  San  Diego  Land  &  Town  Co.  (178  U.  S.,  22); 

Los  Angeles  v.  Los  Angeles  Water  Co.  (177  U.  S.,  558); 

St.  Anthony  Falls  Water  Power  Co.  v.  St.  Paul  Water  Commissioners  (168  U.  S.,  349); 

Bean  v.  Morris  (221  U.  S.,  485). 


DEVELOPMENT  OF   WATEB  POWEB.  3 

4.  The  Federal  Government  owns  the  pubhc  lands  as  a  proprietor 
only  and  not  in  its  sovereign  capacity. 

Pollard's  Lessee  v.  Hagan  (3  How.,  U.  S.,  212); 

Ward  V.  Race  Horse  (163  U.  S.,  504); 

Woodruff  V.  North  Bloomfield  Gravel  Mining  Co.  (18  Fed  Rep.,  753); 

Boggs  V.  Merced  Mining  Co.  (14  Cal.,  279,  376). 

5.  The  Federal  Government  has  no  power  or  jurisdiction  to  fix 
rates  or  regulate  the  use  or  disposition  of  water  within  a  State. 

Sands  v.  Manistee  River  Improvement  Co.  (123  U.  S.,  288); 
Osborne  v.  San  Diego  Land  &  Town  Co.  (178  U.  S.,  22). 

6.  The  power  to  fix  rates  or  regulate  the  use  of  water  not  given  to 
the  Federal  Government  by  the  Constitution  can  not  be  bestowed  by 
act  of  Congress  as  a  condition  to  the  leasing  or  sale  of  the  public  lands. 

New  Orleans  v.  United  States  (10  Pet.,  662,  736); 
Leovy  v.  United  States  (177  U.  S.,  621). 

7.  Absolute  property  in  and  dominion  and  sovereignty  over  the 
soils  under  the  tide  waters  in  the  States  are  reserved  to  the  several 
States. 

Kansas  v.  United  Land  Association  (142  U.  S.,  161). 

8.  Public  lands  owned  by  the  United  States  are  not  subject  to 
taxation  by  the  States. 

California  v.  Shearer  (30  Cal.,  645,  655,  658); 
Van  Brocklin  v.  Tennessee  (117  U.  S.,  151). 

9.  The  power  of  Congress  to  legislate  or  exercise  sovereignty  over 
lands  within  a  State  is  confined  to  lands  acquired  by  the  Federal 
Government  for  certain  specific  purposes,  and  with  the  consent  of 
the  State. 

United  States  v.  Cornell  (2  Mason,  60); 

Woodruff  V.  North  Bloomfield  Gravel  Mining  Co.  (18  Fed.  Rep.,  753). 

The  far-reaching  effects  of  this  proposed  legislation  and  the  evident 
attempt  of  the  Federal  Government  to  usurp  the  sovereign  powers  of 
the  States  move  us  to  consider  more  extensively  the  effect  of  the 
principles  above  laid  down  and  the  cases  supporting  our  Views.  In 
doing  so  we  rest  our  views  and  conclusions  largely  upon  the  following 
premises : 

1.  Before  the  formation  of  the  present  Government  all  sovereign 
powers  were  vested  in  the  several  States  within  their  borders. 

2.  The  Federal  Government  formed  by  the  States  has  only  such 
powers  as  the  States  bestowed  upon  it  by  the  Constitution.  All 
others  are  reserved  to  the  States. 

3.  The  powers  thus  granted  do  not  include  the  power  to  regulate 
or  control  the  use  of  the  waters  of  streams  flowing  within  a  State 
except  to  maintain  and  regulate  commerce  between  the  States,  with 
foreign  nations,  and  under  treaties  with  the  Indians. 

4.  The  ownership  of  land  within  a  State  as  a  proprietary  owner 
and  not  for  governmental  uses  and  purposes  gives  the  Federal  Gov- 
ernment no  power  or  jurisdiction  to  regulate  or  control  the  use  of 
the  waters  of  a  stream  on  which  the  land  borders. 

5.  Therefore  any  legislation  attempting  to  vest  any  such  power  in 
the  Government  will  be  unconstitutional  and  void. 

That  the  bill  under  consideration  does  provide  for  such  usurpation 
of  power  we  will  show  further  along. 


4  DEVELOPMENT   OP   WATEB  POWER. 

Having  laid  down  these  general  principles  that  should  guide  and 
control  our  action,  we  quote,  for  the  information  of  the  Senate,  some 
of  the  language  of  the  courts  on  the  subject  which  we  regard  as  con- 
clusive. 

In  Pollard's  Lessee  v.  Hagan  (3  How.,  212)  the  question  was  as 
to  the  title  to  lands  covered  by  the  waters  of  a  navigable  stream  and 
involved  the  power  and  jurisdiction  of  the  United  States  Government 
over  such  lands.     The  court  said : 

The  right  which  belongs  to  the  society,  or  to  the  sovereign,  of  disposing  in  case  of 
necessity,  and  for  the  public  safety,  of  all  the  wealth  contained  in  the  State,  is  called 
the  eminent  domain.  It  is  evident  that  this  right  is,  in  certain  cases,  necessary  to 
him  who  governs  and  is  consequently  a  part  of  the  empire,  or  sovereign  power. 
(Vat,  Law  of  Nations,  sec.  244.)  This  definition  shows,  that  the  eminent  domain, 
although  a  sovereiom  power,  does  not  include  all  sovereign  power,  and  this  explains 
the  sense  in  which  it  is  used  in  this  opinion.  The  compact  made  between  the  United 
States  and  the  State  of  Georgia  was  sanctioned  by  the  Cojistitution  of  the  United 
States,  by  the  third  section  of  the  fourth  article  of  which  it  is  declared  that  ''New 
States  may  be  admitted  by  the  Congress  into  this  Union;  but  no  new  State  shall  be 
formed  or  erected  within  tne  jurisdiction  of  any  other  State,  nor  any  State  be  formed 
by  the  junction  of  two  or  more  States  or  parts  of  States,  without  the  consent  of  the  legis- 
latures of  the  States  concerned,  as  well  as  of  Congress," 

When  Alabama  was  admitted  into  the  Union,  on  an  equal  footing  with  the  original 
States,  she  succeeded  to  all  the  rights  of  sovereignty,  jurisdiction,  and  eminent  do- 
main which  Georgia  possessed  at  the  date  of  the  cession,  except  so  far  as  this  right  was 
diminished  by  the  public  lands  remaining  in  the  possession  and  under  the  control 
of  the  United  States,  for  the  temporary  purposes  provided  for  in  the  deed  of  cession 
and  the  legislative  acts  connected  with  it.  Nothing  remained  to  the  United  States, 
according  to  the  terms  of  the  agreement,  but  the  public  lands.  And,  if  an  express 
stipulation  had  been  inserted  in  the  agreement,  granting  the  municipal  right  of 
sovereignty  and  eminent  domain  to  the  United  States,  such  stipulation  would  have 
been  void  and  inoperative,  because  the  United  States  have  no  constitutional  capacity 
to  exercise  municipal  jurisdiction,  sovereignty,  or  eminent  domain,  within  the  limits 
of  a  State  or  elsewhere,  except  in  the  cases  in  which  it  is  expressly  granted. 

By  the  sixteenth  clause  of  the  eighth  section  of  the  first  article  of  the  Constitution 
power  is  given  to  Congress  **  to  exercise  exclusive  legislation  in  all  cases  whatsoever 
over  such  district  (not  exceeding  10  miles  square)  as  may  by  cession  of  particular 
States,  and  the  acceptance  of  Congress,  become  the  seat  of  government  of  the  United 
States,  and  to  exercise  like  authority  over  all  places  purchased  by  the  consent  of  the 
legislature  of  the  State  in  which  the  same  may  be,  for  the  erection  of  forts,  magazines, 
arsenals,  dockyards,  and  other  needful  buildings."  Within  the  District  of  Columbia, 
and  the  other  places  purchased  and  used  for  the  purposes  above  mentioned,  the 
nation  and  municipal  powers  of  government  of  every  description  are  united  in  the 
government  of  the  Union.  And  these  are  the  only  cases  within  the  United  States 
in  which  all  the  powers  of  government  are  united  in  a  single  government,  except  in 
cases  already  mentioned  of  the  temporary  territorial  governments,  and  there  a  local 
government  exists.  The  right  of  Alabama  and  every  other  new  State  to  exercise  all 
the  powers  of  government,  which  belong  to  and  may  be  exercised  by  the  original 
States  of  the  Union,  must  be  admitted  and  remain  unquestioned,  except  so  far  as 
they  are,  temporarily,  deprived  of  control  over  the  public  lands. 

We  will  now  inquire  into  the  nature  and  extent  of  the  right  of  the  United  States 
to  these  lands,  and  whether  that  right  can  in  any  manner  affect  or  control  the  decision 
of  the  case  before  us.  This  right  originated  in  voluntary  surrenders,  made  by  several 
of  the  old  States,  of  their  waste  and  unappropriated  lands  to  the  United  States,  under 
a  resolution  of  the  old  Confess  of  the  6th  of  September,  1780,  recommending  such 
surrender  and  cession,  to  aid  in  paying  the  public  debt  incurred  by  the  War  of  the 
Revolution.  The  object  of  all  the  parties  to  these  contracts  of  cession  was  to  con- 
vert the  land  into  money  for  the  payment  of  the  debt  and  to  erect  new  States  over 
the  territory  thus  ceded;  and  as  soon  as  these  purposes  could  be  accomplished  the 
power  of  the  United  States  over  these  lands,  as  property,  was  to  cease. 

Whenever  the  United  States  shall  have  fully  executed  these  trusts  the  municipal 
sovereignty  of  the  new  States  will  be  complete  throughout  their  respective  borders, 
and  they  and  the  original  States  will  be  upon  an  equal  footing  in  all  respects  what- 
ever. We,  therefore,  think  the  United  States  hold  the  public  lands  within  the  new 
States  by  iforce  of  the  deeds  of  cession,  and  the  statutes  connected  with  them,  and 


DEVELOPMENT   OP   WATER   POWER.  6 

not  by  any  municipal  sovereignty  which  it  may  be  supposed  they  possess  or  have 
reserved  by  compact  with  the  new  States  for  that  particular  purpose.  The  provision 
of  the  Constitution  above  referred  to  shows  that  no  such  power  can  be  exercised  by 
the  United  States  within  a  State.  Such  a  power  is  not  only  repugnant  to  the  Con- 
stitution, but  it  is  inconsistent  with  the  spirit  and  intention  of  the  deeds  of  cession. 
The  argument  so  much  relied  on  by  the  counsel  for  the  plaintiffs,  that  the  agreement 
of  the  people  inhabiting  the  new  States,  "that  they  forever  disclaim  all  right  and  title 
to  the  waste  or  unappropriated  lands  lying  within  the  said  territory,  and  that  the 
same  shall  be  and  remain  at  the  sole  and  entire  disposition  of  the  United  States," 
can  not  operate  as  a  contract  between  the  parties,  hut  is  binding,  as  a  law.  Full 
power  is  given  to  Congress  "to  make  all  needful  rules  and  regulations  respecting  the 
territory  or  other  property  of  the  United  States."  This  authorized  the  passage  of 
all  laws  necessary  to  secure  the  rights  of  the  United  States  to  the  public  lands  and 
to  provide  for  their  sale,  and  to  protect  them  from  taxation. 

The  case  of  Withers  v.  Buckley  (20  How.,  84)  involved  the  powers 
of  the  Federal  and  State  Governments  over  navigable  streams.  It 
also  lays  down  the  rule  since  adhered  to  that  the  fifth  and  other 
amendments  to  the  Constitution  were  intended  to  modify  the  powers 
granted  to  the  Federal  Government  and  do  not  limit  or  affect  the 
powers  of  the  State. 

Quoting  from  the  language  of  Chief  Justice  Marshall  in  Barron  v, 
Baltimore  (7  Peters,  247-248),  the  court  said: 

The  question  thus  presented  we  think  of  great  importance  but  not  of  much  difficulty. 

The  Coiistitution  was  ordained  and  established  by  the  people  of  the  United  States 
for  themselves;  for  their  own  government,  and  not  for  the  government  of  the  individual 
States.  Each  State  established  a  constitution  for  itself,  and  in  that  constitution  pro- 
vided such  limitations  and  restrictions  on  the  powers  of  its  particular  government  as 
its  judgment  dictated.  The  people  of  the  United  States  framed  such  a  government 
for  the  United  States  as  they  supposed  best  adapted  to  their  situation  and  best  adapted 
to  promote  their  interests.  The  powers  they  conferred  on  this  government  were  to  be 
exercised  by  itself;  and  the  limitations  on  power,  if  expressed  in  general  terms,  are 
naturally,  and  we  think  necessarily,  applicable  to  the  government  created  by  the 
instrument.  They  are  limitations  of  power  granted  by  the  instrument  itself,  not  of 
distinct  governments  framed  by  different  persons  and  for  different  purposes. 

If  these  propositions  be  correct,  the  fifth  amendment  must  be  understood  as  restrain- 
ing the  power  of  the  General  Government,  not  as  applicable  to  the  States.  In  their 
several  constitutions  they  have  imposed  such  restrictions  on  their  respective  govern- 
ments as  their  own  wisdom  suggested,  such  as  they  deemed  most  proper  for  them- 
selves. It  is  a  subject  on  which  they  judge  exclusively  and  with  which  others  inter- 
fere no  further  than  they  are  supposed  to  have  a  common  interest. 

Again,  reverting  to  the  causes  which  led  to  the  proposal  and  adoption  of  the  amend- 
ments of  the  Constitution,  the  same  judge  remarks  (ib.,  p.  250) — and  these  remarks 
embrace  the  whole  series  of  articles  adopted:  **In  almost  every  convention  in  which 
the  Constitution  was  adopted,  amendments  to  guard  against  the  abuse  of  power  were 
recommended.  These  amendments  demanded  security  against  the  apprehended 
encroachments  of  the  General  Government,  not  against  those  of  the  local  governments. 

'*  In  compliance  with  a  sentiment  thus  generally  expressed,  to  quiet  fears  thus  exten- 
sively entertained,  amendments  were  proposed  by  the  required  majority  in  Congress 
and  adopted  by  the  States.  These  amendments  contain  no  expression  indicating  an 
intention  to  apply  them  to  the  State  governments.  This  court  can  not  so  apply  them. 
(Vide  also  the  cases  of  Fox  v.  The  State  of  Ohio,  5  How.,  411;  and  of  The  West  River 
Bridge  Co.  v.  Dix  et  al.,  6  How.,  507.) " 

And  further,  in  considering  an  act  of  Congress  relating  to  the 
subject,  the  court,  in  the  same  case,  used  this  langage: 

In  considering  this  act  of  Congress  of  March  1, 1817,  it  is  unnecessary  to  institute  any 
examination  or  criticism  as  to  its  legitimate  meaning,  or  operation,  or  binding  author- 
ity, further  ^an  to  affirm  that  it  could  have  no  effect  to  restrict  the  new  State  in  any 
of  its  necessary  attributes  as  an  independent  sovereign  Government,  nor  to  inhibit  or 
diminish  its  perfect  equality  with  the  other  members  of  the  Confederacy  with  which 
it  was  to  be  associated.  These  conclusions  follow  from  the  very  nature  and  objects  of 
the  Confederacy,  from  the  language  of  the  Constitution  adopted  by  the  States,  and 
from  the  rule  of  interpretation  pronounced  by  this  court  in  the  case  of  Pollard's  Lessee 


b  DEVELOPMENT   OF   WATER   POWER. 

V.  Hagan  (3  How.,  p.  223).  The  act  of  Congress  of  March  1,  1817,  in  prescribing  the 
free  navigation  of  the  Mississippi  and  the  navigable  waters  flowing  into  the  river, 
could  not  have  been  designed  to  inhibit  the  power  inseparable  from  every  sovereign 
or  efficient  Government,  to  devise  and  to  execute  measures  for  the  improvement  of 
the  State,  although  such  measures  might  induce  or  render  necessary  changes  in  the 
channels  or  courses  of  rivers  within  the  interior  of  the  State,  or  might  be  productive 
of  a  change  in  the  value  of  private  property.  Such  consequences  are  not  infrequently 
and  indeed  unavoidably  incident  to  public  and  general  measures  highly  promotive  of 
and  absolutely  necessary  to  the  public  good.  And  here  it  may  be  asked  whether  the 
law  complained  of  and  the  measures  said  to  be  in  contemplation  for  its  execution 
are  in  reality  in  conflict  with  the  act  of  Congress  of  March  1,  1817,  with  respect  either 
to  the  letter  or  the  spirit  of  the  act.  On  this  point  may  be  cited  the  case  of  Veazie  et 
al.  V.  Moor  (in  14  How.,  568). 

The  case  of  Escanaba  Co.  v.  Chicago  (107  U.  S.,  678)  involved  the 
right  of  the  States  to  legislate  respecting  the  use  of  navigable  streams 
over  which,  for  purposes  of  commerce  between  the  States,  the  Federal 
Government  has  jurisdiction.  In  dealing  with  this  question  the 
court  said : 

The  power  vested  in  the  General  Government  to  regulate  interstate  and  foreign 
commerce  involves  the  control  of  the  waters  of  the  United  States  which  are  navi- 
gable in  fact,  so  far  as  it  may  be  necessary  to  insure  their  free  navigation,  when  by 
themselves  or  their  connection  with  other  waters  they  form  a  continuous  channel 
for  coromerce  among  the  States  or  with  foreign  countries,    *    *    * 

But  the  States  have  full  power  to  regulate  within  their  limits  matters  of  internal 
police,  including  in  that  general  designation  whatever  will  promote  the  peace, 
comfort,  convenience,  and  prosperity  of  their  people.  This  power  embraces  the 
construction  of  roads,  canals,  and  bridges  and  the  establishment  of  ferries,  and  it 
can  generally  be  exercised  more  wisely  by  the  States  than  by  a  distant  authority. 
They  are  the  first  to  see  the  importance  of  such  means  of  internal  communication 
and  are  more  deeply  concerned  than  others  in  their  wise  management.  Illinois  is 
more  immediately  affected  by  the  bridges  over  the  Chicago  River  and  its  branches 
than  any  other  State  and  is  more  directly  concerned  for  the  prosperity  of  the  city 
of  Chicago,  for  the  convenience  and  comfort  of  its  inhabitants,  and  the  growth  of  its 
commerce.  And  nowhere  could  the  power  to  control  the  bridges  in  that  city,  their 
construction,  form  and  strength,  and  the  size  of  their  draws  and  the  manner  and 
times  of  using  them  be  better  vested  than  with  the  State  or  the  authorities  of  the 
city  upon  whom  it  has  devolved  that  duty.  When  its  power  is  exercised  so  as  to 
unnecessarily  obstruct  the  navigation  of  the  river  or  its  branches,  Congress  may 
interfere  and  remove  the  obstruction.  If  the  power  of  the  State  and  that  of  the 
Federal  Government  come  in  conflict,  the  latter  must  control  and  the  former  yield. 
This  necessarily  follows  from  the  position  given  by  the  Constitution  to  legislation 
in  pursuance  of  it  as  the  supreme  law  of  the  land.  But  until  Congress  acts  on  the 
subject  the  power  of  the  State  over  bridges  across  its  navigable  streams  is  plenary. 

And  further: 

The  doctrine  declared  in  these  several  decisions  is  in  accordance  with  the  more 
general  doctrine  now  firmly  established — that  the  commercial  power  of  Congress  is 
exclusive  of  State  authority  only  when  the  subjects  upon  which  it  is  exercised  are 
national  in  their  character  and  admit  and  require  uniformity  of  regulation  affecting 
alike  all  the  States.  Upon  such  subjects  only  that  authority  can  act  which  can 
speak  for  the  whole  country.  Its  nonaction  is  therefore  a  declaration  that  they 
shall  remain  free  from  all  regulation. 

Kansas  v.  Colorado  (206  U.  S.,  46)  involves  directly  the  power  of 
the  Federal  Government  to  legislate  respecting  the  irrigation  of  arid 
lands.  The  question  presented  for  decision  is  thus  stated  by  the 
court: 

Turning  now  to  the  controversy  as  here  presented,  it  is  whether  Kansas  has  a  right 
to  the  continuous  flow  of  the  waters  of  the  Arkansas  River,  as  that  flow  existed  before 
any  human  interference  therewith,  or  Colorado  the  right  to  appropriate  the  waters  of 
that  stream  so  as  to  prevent  that  continuous  flow,  or  that  the  amount  of  the  flow  is 
subject  to  the  superior. authority  and  supervisory  control  of  the  United  States.    *    *    * 

The  primary  question  is,  of  course,  of  national  control.  For,  if  the  Nation  has  a 
right  to  regulate  the  flow  of  the  waters,  we  must  inquire  what  it  has  done  in  the  way 


DEVELOPMENT   OF    WATEK   POWER.  7 

of  regulation.     If  it  has  done  nothing  the  further  question  will  then  arise,  What  are 
the  respective  rights  of  the  two  States  in  the  absence  of  national  regulation? 

In  discussing  this  question,  as  stated  by  the  court,  it  was  said: 

Congress  has,  by  virtue  of  the  grant  to  it  of  power  to  regulate  commerce  "among  the 
several  States,"  extensive  control  over  the  highways,  natural  or  artificial,  upon  which 
sucn  commerce  may  be  carried.  It  may  prevent  or  remove  obstructions  in  the  natural 
waterways  and  preserve  the  navigability  of  those  ways.    *    *    * 

That  involves  the  question  whether  the  reclamation  of  arid  lands  is  one  of  the  powers 
granted  to  the  General  Government.  As  heretofore  stated,  the  constant  declaration 
of  this  court  from  the  beginning  is  that  this  Government  is  one  of  enumerated  powers. 
"The  Government,  then,  of  the  United  States,  can  claim  no  powers  which  are  not 
granted  to  it  by  the  Constitution,  and  the  powers  actually  granted,  must  be  such  as 
are  expressly  given,  or  given  by  necessary  implication."  (Story,  J.,  in  Martin  v.  Hun- 
ter's Lessee,  1  Wheat.,  304,  326.)  "The  Government  of  the  United  States  is  one  of 
delegated,  limited,  and  enumerated  powers."  (United  States  v.  Harris,  106  U.  S., 
629,  635.) 

Turning  to  the  enumeration  of  the  powers  granted  to  Congress  by  the  eighth  section 
of  the  first  article  of  the  Constitution,  it  is  enough  to  say  that  no  one  of  them  by  any 
implication  refers  to  the  reclamation  of  arid  lands.  The  last  paragraph  of  the  sec- 
tion, which  authorizes  Congress  to  make  all  laws  which  shall  be  necessary  and  proper 
for  carrying  into  execution  the  foregoing  powers,  and  all  other  powers  vested  by  tnis 
Constitution  in  the  Government  of  the  IJnited  States,  or  in  any  department  or  office 
thereof,  is  not  the  delegation  of  a  new  and  indei)endent  power,  but  simply  provision 
for  making  effective  the  powers  theretofore  mentioned.    *    *    *       . 

We  must  look  beyond  section  8  for  congressional  authority  over  arid  lands,  and  It  is 
said  to  be  found  in  the  second  paragraph  of  section  3  of  Article  IV,  reading:  "The 
Congress  shall  have  power  to  dispose  of  and  make  all  needful  rules  and  regalations 
respecting  the  territory  or  other  property  belonging  to  the  United  States;  and  nothing 
in  this  Constitution  shall  be  so  construed  as  to  prejudice  any  claims  of  the  United 
States,  or  of  any  particular  State." 

The  full  scope  of  this  paragraph  has  never  been  definitely  settled.  Primarily,  at 
least,  it  is  a  grant  of  power  to  the  United  States  of  control  over  its  property.  That 
is  implied  by  the  words  "territory  or  other  property."  It  is  true  it  has  been  referred 
to  in  some  decisions  as  granting  political  and  legislative  control  oyer  the  Territories, 
as  distinguished  from  the  States  of  the  Union,  It  is  unnecessary  in  the  present  case 
to  consider  whether  the  language  justifies  this  construction.  Certainly  we  have  no 
disposition  to  limit  or  qualify  the  expressions  which  have  heretofore  fallen  from  this 
court  in  respect  thereto.  But,  clearly,  it  does  not  grant  to  Congress  any  legislative 
control  over  the  States  and  must,  so  far  as  they  are  concerned,  be  limited  to  authority  over 
the  property  belonging  to  the  United  States  within  their  limits.  Appreciating  the  force 
of  this,  counsel  for  the  Government  relies  upon  "the  doctrine  of  sovereign  and  inher- 
ent power,"  adding,  "I  am  aware  that  in  advancing  this  doctrine  I  seem  to  challenge 
great  decisions  of  the  court,  and  I  speak  with  deference."  His  argument  runs  sub- 
stantially along  this  line:  AH  legislative  power  must  be  vested  in  either  the  State 
or  the  National  Government;  no  legislative  powers  belong  to  a  State  government 
other  than  those  which  affect  solely  the  internal  affairs  of  that  State,  consequently 
all  powers  which  are  national  in  their  scope  must  be  found  vested  in  the  Congress  of 
the  United  States.  But  the  proposition  that  there  are  legislative  powers  affecting 
the  Nation  as  a  whole  which  belong  to,  although  not  expressed  in  the  grant  of  powers, 
is  in  direct  conflict  with  the  doctrine  that  this  is  a  Government  of  enumerated  powers. 
That  this  is  such  a  Government  clearly  appears  from  the  Constitution,  independently 
of  the  amendments,  for  otherwise  there  would  be  an  instrument  granting  specific 
things  made  operative  to  grant  other  and  distinct  things.  This  natural  construction 
of  the  original  body  of  the  Constitiition  is  made  absolutely  certain  by  the  tenth 
amendment.  This  amendment,  which  was  seemingly  adopted  with  prescience  of 
just  such  contention  as  the  present,  disclosed  the  widespread  fear  that  the  National 
Government  might,  under  the  pressure  of  a  supposed  general  welfare,  attempt  to 
exercise  powers  which  had  not  been  granted.  With  equal  determination,  the  framers 
intended  that  no  such  assumption  should  ever  find  justification  in  the  organic  act, 
and  that  if  in  the  future  further  powers  seemed  necessary  they  should  be  gi-anted  by 
the  people  in  the  manner  they  had  provided  for  amending  that  act.  It  reads,  "The 
powers  not  delegated  to  the  United  States  by  the  Constitution  nor  prohibited  by  it 
to  the  States  are  reserved  to  the  States,  respectively,  or  to  the  people    *    *    *. 

One  cardinal  rule  underlying  all  the  relations  of  the  States  to  each  other  is  that  of 
equalit)^  of  right.  Each  State  stands  on  the  same  level  with  all  the  rest.  It  can 
impose  its  own  legislation  on  no  one  of  the  others  and  is  bound  to  yield  its  own  views 


8  DEVELOPMENT    OF    WATER  POWER. 

to  none.  Yet,  whenever,  as  in  the  case  of  Missouri  v.  Illinois  (180  U,  S.,  208)  the  action 
of  one  State  reaches  through  the  agency  of  natural  laws  into  the  territory  of  another 
State,  iJie  question  of  the  extent  and  the  limitations  of  the  rights  of  the  two  States 
becomes  a  matter  of  justiciable  dispute  between  them,  and  this  court  is  called  upon 
to  settle  that  dispute  in  such  a  way  as  will  recognize  the  equal  rights  of  both  and  at 
the  same  time  establish  justice  between  them. 

The  court  then  proceeded  to  consider  and  determine  the  rights, 
not  of  the  Federal  Government,  but  of  the  States  of  Kansas  ana 
Colorado,  in  the  waters  of  the  Arkansas  River,  a  stream  which  flows 
through  both  States. 

The  case  of  Shively  v.  Bowlby  (152  U.  S.,  1)  involved  the  title  to 
lands  below  high-water  mark  in  the  Columbia  River  in  the  State  of 
Oregon.  It  is  one  of  the  leading  cases  on  the  subject  of  the  powers 
of  the  Federal  and  State  Governments  over  navigable  streams. 
That  the  power  and  jurisdiction  of  the  States  over  nonnavigable 
streams  and  lands  lying  under  them  is  exclusive  is  not  questioned. 
It  is  only  where  the  question  of  navigation  for  interstate  purposes  is 
involved  that  any  question  of  sovereign  power  in  the  States  has  ever 
been  controverted.  In  this  case  the  laws  of  the  several  States  on 
the  subject  and  the  numerous  decided  cases  bearing  upon  it  are  fully 
reviewed  and  the  doctrine  laid  down  in  Pollard's  Lessee  v.  Hagan, 
quoted  from  above,  confirmed  and  approved.  The  opinion  in  the 
case  is  an  exceedingly  interesting  and  instructive  one  and  should 
receive  attention  in  this  connection.     In  closing,  the  court  said: 

The  United  States,  while  they  hold  the  country  as  a  Territory,  having  all  the 
powers  both  of  national  and  municipal  government,  may  grant  for  appropriate  pur- 

Eoses,  titles  or  rights  in  the  soil  below  high-water  mark  of  tidewaters.  But  they 
ave  never  done  so  by  general  laws;  and,  unless  in  some  case  of  international  duty 
or  public  exigency,  have  acted  upon  the  policy,  as  most  in  accordance  with  the 
interest  of  the  people  and  with  the  object  for  which  the  Territories  were  acquired, 
of  leaving  the  administration  and  disposition  of  this  sovereign  rights  in  navigable 
waters  and  in  the  soil  under  them  to  the  control  of  the  States,  respectively,  when 
organized  and  admitted  into  the  Union. 

Grants  by  Congress  of  portions  of  the  public  lands  within  a  Territory  to  settlers 
thereon,  though  bordering  on  or  bounded  by  navigable  waters,  convey,  of  their  own 
force,  no  title  or  right  below  high-water  mark,  and  do  not  impair  the  title  and  domin- 
ion of  the  future  State  when  created;  but  leave  the  question  of  the  use  of  the  shores 
by  ttie  owners  of  uplands  to  the  sovereign  control  of  each  State,  subject  only  to  the 
rights  vested  by  the  Constitution  in  the  United  States. 

The  donation  land  claim,  bounded  b):  the  Columbia  River,  upon  which  the  plain- 
tiff in  error  relies,  includes  no  title  or  right  in  the  land  below  high- water  mark;  and 
the  statutes  of  Oregon,  under  which  the  defendants  in  error  hold,  are  a  constitu- 
tional and  legal  exercise  by  the  State  of  Oregon  of  its  dominion  over  the  lands  under 
navigable  waters. 

The  foUowing^  statement  in  the  opinion  in  Illinois  Central  Railroad 
V.  Illinois  (146  U.  S.,  387,  435)  is  to  the  same  effect: 

It  'B  the  settled  law  of  this  country  that  the  ownership  of  and  dominion  and  sover- 
eignty over  lands  covered  by  tidewaters,  within  the  limits  of  the  several  States, 
belong  to  the  respective  States  within  which  they  are  found,  with  the  consequent 
right  to  use  or  dispose  of  any  portion  thereof,  when  that  can  be  done  without  sub- 
stantial impairment  of  the  interest  of  the  public  in  the  waters,  and  subject  always 
to  the  paramount  right  of  Congress  to  control  their  navigation  as  far  as  may  be  neces- 
sary for  the  regulation  of  commerce  with  foreign  nations  and  among  the  States.  This 
doctrine  has  been  often  announced  by  this  court  and  is  not  questioned  by  counsel 
of  any  of  the  parties.  (Pollard's  Lessee  v.  Hagan,  3  How.,  212;  Weber  v.  Harbor 
Commissioners,  18  Wall.,  57.) 

As  estabhshing  the  claim  we  make  that  the  Constitution  vests 
no  power  in  the  Federal  Government  to  regulate  or  control  the 
use  of  the  waters  of  a  stream  within  a  State,  and  that  this  power 


DEVELOPMENT    OP    WATER   POWER.  9 

can  not  be  given  by  a  statute  enacted  by  Congress,  we  quote  this 
language  from  the  opinion  in  New  Orleans  v.  United  States  (10 
Peters,  662,  736) : 

The  Government  of  the  United  States,  as  was  well  observed  in  the  argument,  is 
one  of  limited  powers.  It  can  exercise  authority  over  no  subjects,  except  those 
which  have  been  delegated  to  it.  Congress  can  not,  by  legislation,  enlarge  the  Fed- 
eral jurisdiction,  nor  can  it  be  enlarged  under  the  treaty-making  power. 

That  the  States  have  the  right  to  regulate  the  use  of  even  navi- 
gable streams  within  their  borders  where  Congress  has  not  acted  or 
where  such  action  does  not  interfere  with  the  paramount  power  of 
the  Federal  Government  to  regulate  commerce  between  the  States, 
is  affirmed  by  Leovy  v.  United  States  (177  U.  S.,  621),  in  which  it 
is  said: 

Subject,  then,  to  the  paramount  jurisdiction  of  Congress  over  the  navigable  waters 
of  the  United  States,  the  State  of  Louisiana  has  full  power  to  authorize  fiie  construc- 
tion and  maintenance  of  levees,  drains,  and  other  structures  necessary  and  suitable 
to  reclaim  swamp  and  overflowed  lands  within  her  limits. 

And  in  the  Daniel  Ball  (177  U.  S.,  10  Wall.,  557)  it  is  said: 

Those  rivers  must  he  regarded  as  public  navigable  rivers  in  law  which  are  navi- 
gable in  fact.  And  they  are  navigable  in  fact  when  they  are  used,  or  are  susceptible 
of  being  used,  in  their  ordinary  condition,  as  highways  for  commerce,  over  which 
trade  and  travel  are  or  may  be  conducted  in  the  customary  modes  of  trade  and  travel 
on  water. 

Respecting  the  right  of  a  State  to  control  the  navigation  of  a  stream 
wholly  within  its  limits  it  was  said  in  the  case  of  Veazie  v.  Moor  (14 
How.,  568,  573) : 

Upon  a  comparison  of  this  decree  and  of  the  statute  upon  which  it  is  founded  with 
the  provision  of  the  Constitution  already  referred  to,  we  are  unable  to  perceive  by 
what  rule  of  interpretation  either  the  statute  or  the  decree  can  be  brought  within  either 
of  the  categories  comprised  in  that  provision. 

These  categories  are:  1.  Commerce  with  foreign  nations,  2.  Commerce  amongst 
the  several  States.  3.  Commerce  with  the  Indian  tribes.  Taking  the  term  commerce 
in  its  broadest  acceptation,  supposing  it  to  embrace  not  merely  traffic  but  the  means 
and  vehicles  by  which  it  is  prosecuted,  can  it  properly  be  made  to  include  objects  and 
purposes  such  as  those  contemplated  by  the  law  under  review?  Commerce  with 
foreign  nations  must  signify  commerce  which  in  some  sense  is  necessarily  connected 
with  these  nations,  transactions  which  either  immediately  or  at  some  stage  of  their 
progress  must  be  extraterritorial.  *  *  *  The  phrase  can  never  be  applied  to  trans- 
actions wholly  internal,  between  citizens  of  the  same  community,  or  to  a  polity  and 
laws  whose  ends  and  purposes  and  operations  are  restricted  to  me  territory  and  soil 
and  jurisdiction  of  such  community.  Nor  can  it  be  properly  concluded  that,  because 
the  products  of  domestic  enterprise  in  agriculture  or  manufactures,  or  in  the  arts 
may  ultimately  become  the  subjects  of  foreign  commerce,  the  control  of  the  means 
of  the  encouragements  by  which  enterprise  is  fostered  and  protected  is  legitimately 
within  the  import  of  the  phrase  foreign  commerce,  or  fairly  implied  in  any  investi- 
ture of  the  power  to  regulate  such  commerce.  A  pretension  as  far-reaching  as  this 
would  extend  to  contracts  between  citizen  and  citizen  of  the  same  State,  would 
control  the  pursuits  of  the  planter,  the  grazier,  the  manufactiirer,  the  mechanic,  the 
immense  operations  of  the  collieries  and  mines  and  furnaces  of  the  country;  for  there 
is  not  one  of  these  avocations  the  results  of  which  may  not  become  the  subjects  of 
foreign  commerce  and  be  borne  either  by  turnpikes,  canals,  or  railroads  from  point 
to  point  within  the  several  States  toward  an  ultimate  destination,  like  the  one  aoove 
mentioned.  Such  a  pretension  would  effectually  prevent  or  paralyze  every  effort 
at  internal  improvement  by  the  several  States;  for  it  can  not  be  supposed  that 
the  States  would  exhaust  their  capital  and  their  credit  in  the  construction  of  turnpikes, 
canals,  and  railroads,  the  remuneration  derivable  from  which  and  all  control  over 
which  might  be  immediately  wrested  from  them,  because  such  public  works  would 
be  facilities  for  a  commerce  which,  while  availing  itself  of  those  facilities,  was  unques- 
tionably internal,  although  intermediately  or  ultimately  it  might  become  foreign. 

The  rule  here  given  with  respect  to  the  regulation  of  foreign  commerce  equally 
excludes  from  the  regulation  of  commerce  between  the  States  and  tiie  Indian  tribes 
S.  Kept.  S9S— Pt.  2—63-3 2 


10  DEVELOPMENT   OF   WATER  POWER. 

the  control  over  turnpikes,  canals,  or  railroads,  or  the  clearing  and  deepening  of 
watercourses  exclusively  within  the  States,  or  the  management  of  the  transportation 
upon  and  by  means  of  such  improvements. 

In  New  York  v.  Miln  (11  Pet.,  102,  139)  the  absolute  right  of  the 
State  in  this  respect  is  more  clearly  and  emphatically  declared  in 
this  language: 

But  we  do  not  place  our  opinion  on  this  ground.  We  choose  rather  to  plant  ourselves 
on  what  we  consider  impregnable  positions.  They  are  these:  That  a  State  has  the 
same  undeniable  and  unlimited  jurisdiction  over  all  persons  and  things  within  its 
territorial  limits  as  any  foreign  nation,  where  that  jurisdiction  is  not  surrendered 
or  restrained  by  the  Constitution  of  the  United  States.  That,  by  virtue  of  this,  it  is 
not  only  the  right,  but  the  bounden  and  solemn  duty  of  a  State  to  advance  the  safety, 
happiness,  and  prosperity  of  its  people,  and  to  provide  for  its  general  welfare  by 
every  act  of  legislation  which  it  may  deem  to  be  conducive  to  these  ends;  where 
the  power  over  the  particular  subject  or  the  manner  of  its  exercise  is  not  surrendered 
or  restrained  in  the  manner  just  stated.  That  all  those  powers  which  relate  to  merely 
municipal  legislation,  or  what  may,  perhaps,  more  properly  be  called  internal  police, 
are  riot  thus  surrendered  or  restrained,  and  that  consequently,  in  relation  to  these, 
the  authority  of  a  State  is  complete,  unqualified,  and  exclusive. 

We  are  aware  that  it  is  at  all  times  difficult  to  define  any  subject  with  proper  pre- 
cision and  accuracy;  that  if  this  be  so  in  general,  it  is  emphatically  so  in  relation  to  a 
subject  so  diversified  and  multifarious  as  the  one  which  we  are  now  considering. 

If  we  were  to  attempt  it,  we  should  say  that  every  law  came  within  this  description 
which  concerned  the  welfare  of  the  whole  people  of  a  State  or  any  indi^^.dual  within 
it,  whether  it  related  to  their  rights  or  their  duties,  whether  it  respected  them  as  men 
or  as  citizens  of  the  State,  whether  in  their  public  or  private  relation,  -whether  it 
related  to  the  rights  of  persons  or  of  property  or  of  the  whole  people  of  the  State  or  any 
individual  within  it,  and  whose  operation  was  within  the  territorial  limits  of  the  State 
and  upon  the  persons  and  things  within  its  jurisdiction. 

Applying  this  doctrine  to  the  right  of  a  State  to  protect  and  control 
the  flow  of  water  in  the  streams  within  its  limits,  the  court  said,  in 
Hudson  Water  Co.  v.  McCarter  (209  U.  S.,  349,  356): 

The  problems  of  irrigation  have  no  place  here.  Leaving  them  on  one  side,  it 
appears  to  us  that  few  public  interests  are  more  obvious,  mdisputable,  and  inde- 
pendent of  particular  theory  than  the  interest  of  the  public  of  a  State  to  maintain 
the  rivers  that  are  wholly  within  it  substantially  undiminished,  except  by  such 
drafts  upon  them  as  the  guardian  of  the  public  welfare  may  permit  for  the  purpose 
of  turning  them  to  a  more  perfect  use.  This  public  interest  is  omnipresent  wherever 
there  is  a  State,  and  grows  more  pressing  as  population  grows.  It  is  fundamental, 
and  we  are  of  opinion  that  the  private  property  of  riparian  proprietors  can  not  be 
supposed  to  have  deeper  roots.  Whether  it  be  said  that  such  an  interest  justifies  the 
cutting  down  by  statute  without  compensation,  in  the  exercise  of  the  police  power, 
of  what  otherwise  would  be  private  rights  of  property,  or  that  apart  from  statute  those 
rights  do  not  go  to  the  height  of  what  the  defendant  seeks  to  do,  the  result  is  the  same. 
But  we  agree  with  the  New  Jersey  courts,  and  think  it  quite  beyond  any  rational 
view  of  riparian  rights  that  an  agreement,  of  no  matter  what  private  owners,  could 
sanction  the  diversion  of  an  important  stream  outside  the  boundaries  of  the  State  in 
which  it  flows.    *    *    * 

The  right  to  receive  water  from  a  river  through  pipes  is  subject  to  territorial  limits 
by  nature,  and  thosa  limits  may  be  fixed  by  the  State  within  which  the  river  flows, 
even  if  they  are  made  to  coinciae  with  the  State  line. 

Respecting  the  effect  of  the  admission  of  Wyoming  as  a  State 
upon  a  treaty  with  the  Indians  by  which  they  were  given  the  right 
to  hunt  on  the  public  domain,  the  court  in  Ward  v.  Race  Horse 
(163  U.  S.  504)  used  this  language: 

The  argument  now  advanced  in  favor  of  the  continued  existence  of  the  right  to 
hunt  over  the  land  mentioned  in  the  treaty,  aftef  it  had  become  subject  to  State 
authority,  admits  that  the  privilege  would  cease  by  the  mere  fact  that  the  United 
States  disposed  of  its  title  to  any  of  the  land,  although  such  disposition,  when  made 
to  an  individual,  would  give  him  no  authority  over  game,  and  yet  that  privilege 
continued  when  the  United  States  had  called  into  being  a  sovereign  State,  a  neces- 
sary incident  of  whose  authority  was  the  complete  power  to  regulate  the  killing  of 


DEVELOPMENT    OF    WATER   POW£R.  11 

game  within  its  borders.  This  argument  indicates  at  once  the  conflict  between  the 
right  to  hunt  in  the  unoccupied  lands  within  the  hunting  districts  and  the  assertion 
of  the  power  to  continue  the  exercise  of  the  privilege  in  question  in  the  State  of 
Wvoming  in  defiance  of  its  laws.     *    *    * 

The  act  which  admitted  Wyoming  into  the  Union,  as  we  have  said,  expressly 
declared  that  that  State  should  have  all  the  powers  of  the  other  States  of  the  Union, 
and  made  no  reservation  whatever  in  favor  of  the  Indians.  These  provisions  alone 
considered  would  be  in  conflict  with  the  treaty  if  it  was  so  construed  as  to  allow  the 
Indians  to  seek  out  every  unoccupied  piece  of  Government  land  and  thereon  dis- 
regard and  violate  the  State  law,  passed  in  the  undoubted  exercise  of  its  municipal 
authority.  But  the  language  of  the  act  admitting  Wyoming  into  the  Union,  which 
recognized  her  coequal  rights,  was  merely  declaratory  of  the  general  rule. 

As  to  the  limitation  of  the  powers  of  the  Federal  Goverftment 
based  upon  its  proprietory  ownership  of  lands  within  a  State,  this  is 
said  in  Woodruff  v.  North  Bloomfield  Gravel  Minins:  Co.  (18  Fed. 
Rep.,  753,  772) : 

Upon  the  cession  of  California  by  Mexico,  the  sovereignty  and  proprietorship  of  all 
the  lands  within  its  borders  in  which  no  private  interest  had  vested  passed  to  the 
United  States.  Upon  the  admission  of  California  into  the  Union,  upon  an  equal 
footing  with  the  original  States,  the  sovereignty  for  all  internal  municipal  purpoeea. 
and  for  all  purposes  except  such  purposes  and  with  such  powers  as  are  expressly  con- 
ferred upon  the  National  Government  by  the  Constitution  of  the  United  States,  passed 
to  the  State  of  California.     Thenceforth  the  only  interest  of  the  United  States  in  the 

Eublic  lands  was  that  of  a  proprietor,  like  that  of  any  other  proprietor  except  that  the 
tate,  under  the  express  terms  upon  which  it  was  admitted,  could  pass  no  laws  to 
interfere  with  their  primary  disposal,  and  they  were  not  subject  to  taxation.  In  all 
other  respects  the  United  States  stood  upon  the  same  footing  as  private  owners  of  land. 

Having  demonstrated,  by  reference  to  the  decided  cases,  the 
respective  rights  of  the  Federal  Government  and  the  States  in  the 
subject  matter  of  the  bill,  we  proceed  to  consider  the  provisions  of 
the  bill  itself  and  the  bearino;  of  the  principles  we  have  discussed 
above  on  its  terms  and  conditions. 

But  before  taking  up  the  various  provisions  of  the  bill  in  detail  we 
desire  to  consider  it  briefly  as  a  whole. 

The  bill  in  its  entire  scope  and  purpose  is  an  infringement  upon 
and  an  usurpation  of  the  sovereign  powers  of  the  States.  This  is  not 
only  its  effect,  but  it  is  the  avowee!  intention  of  its  friends  to  trans- 
fer, in  part,  at  least,  from  the  States  to  the  National  Government 
the  control  over  the  use  of  the  waters  of  the  stream  within  the  States. 
Ostensibly  it  is  proposed  to  authorize  the  Government  to  lease  its 
own  lands.  To  this  there  are  serious  objections,  as  we  shaU  point 
out  further  along.  But  the  public  lands  that  may  be  leased  for 
power  sites  are  of  themselves  practically  worthless.  The  Govern- 
ment has  no  ownership  or  interest  in  the  water  flowing  in  the  stream 
except  that  of  a  riparian  owner,  and  that  only  in  States  where  ripa- 
rian rights  are  recognized.  In  most  of  the  Western  States  riparian 
rights  are  abolished  and  the  ownership  of  the  water  vested  in  the 
whole  people  of  the  State,  to  be  appropriated  and  applied  to  bene- 
ficial uses,  as  the  laws  of  the  State  may  provide.  The  Government 
owns  the  land  precisely  as  a  private  individual  owns  his  land,  and 
with  the  same  rights  and  privileges  as  to  the  use  of  the  water  that 
flows  by  it — no  more,  no  less.  It  does  not  own  it  in  its  sovereign 
capacity,  as  we  have  shown,  and  has  no  sovereign  power  over  it  or 
over  the  water  thnt  flows*  past  it.  But  the  effect  of  the  bill  is  to 
lease,  not  alone  the  land  it  owns,  but  the  waters  of  the  stream  upon 
wtich  it  borders,  and  by  conditions  and  restrictions  in  the  lease 
to  deternuue  hovr  and  for  what  purposes  the  lessee  shall  use  the 


12  DEVELOPMENT   OF    WATEE   POWEB. 

water,  as  well  as  the  land.  This  is  in  violation  of  the  principles 
enunciated  by  the  courts,  as  above  pointed  out,  and  an  encronch- 
ment  upon,  and  a  plain  and  open  violation  of,  the  sovereign  rights 
of  the  States  to  govern  and  control  such  use. 

It  is  an  ingenious  effort  to  fasten  upon  the  private  ownership  of 
the  land,  by  the  Government,  the  sovereign  right  to  control  the  use 
of  the  waters,  a  right  that  the  Government  does  not  possess  under 
the  Constitution  and  can  not  be  given  it  by  statute,  and  which  ad- 
mittedly does  belong  to  the  States.  The  rental  to  be  paid  by  the 
lessee  is  not  based  upon  the  value  of  the  use  of  the  land,  but  upon 
the  amount  of  power  that  can  be  produced  by  the  water,  which  be- 
longs to  the  State,  and,  as  the  water,  in  which  the  Government  has 
no  ownership  or  interest,  is  thus  leased,  the  attempt  is  made  to  con- 
trol the  use  of  the  thing  leased,  namely,  the  water.  It  may  be  con- 
ceded that  the  Government,  as  lessor,  and  the  lessee  may  agree  upon 
any  basis  they  please  in  fixing  the  rental  or  royalty  to  be  paid.  Of 
this  the  State  could  not  justly  complain.  The  trouble  is  that  because 
the  Governm-snt  fixes  the  amount  to  be  paid  for  the  land  by  the 
amount  of  power  that  can  be  produced  by  the  water,  over  which  it 
can  have  no  right  or  control,  it  is  attempting  to  vest  in  itself  the 
unwarranted  power  to  determine  how  the  water  shall  be  used  and 
what  for.  Ostensibly  this  is  done  to  protect  the  Government,  as 
lessor,  and  secure  to  it  a  compliance,  on  the  part  of  the  lessee,  with 
the  terms  of  the  lease.  But  the  intention  and  the  effect  of  it  is  to 
draw  to  the  Federal  Government  the  right  to  control  the  use  of  the 
water.  And  this  is  the  matter  in  controversy.  Of  this  the  vStates 
have  every  reason  to  complain.  The  granting  of  any  such  privilege 
is  a  betrayal  of  the  sovereign  rights  of  the  State. 

If  any  private  owner  of  lands  bordering  on  a  stream  should  lease 
his  lands  tor  a  power  site  and  impose  any  such  terms  and  conditions, 
affecting  the  use  of  the  water,  as  this  bill  provides  for,  they  would 
undoubtedly  be  inoperative  and  void.  And,  as  the  National  Gov- 
ernment, in  this  respect,  has  only  the  rights  of  a  private  owner,  such 
conditions,  made  by  the  Government,  would  be  equally  so. 

Having  submitted  these  views  on  the  general  scope  and  effect  of 
the  bill,  we  proceed  to  verify  what  we  have  said  of  it  by  calling  atten- 
tion to  some  of  its  specific  provisions. 

In  its  first  section  the  bill  authorizes  the  Secretary  of  the  Interior 
to  lease  lands  of  the  Government  for  the  ''development,  generation, 
transmission,  and  utilization  of  hydroelectric  power."  The  effort  is 
to  devote  not  only  the  land  leased,  but  the  water,  to  a  specific  and 
exclusive  purpose,  namely,  the  generation  of  power.  This  is  a  direct 
violation  of  the  right  of  the  States  to  regulate  and  control  the  use  or 
uses  to  which  water  should  be  applied,  and  in  direct  opposition  to  the 
policies  of  the  States.    In  nearly  all  of  the  States  where  irrigation  is 

Eracticed  and  in  which  this  law,  if  enacted,  will  operate,  have,  either 
y^  direct  statutory  provisions  or  rules  and  regulations  adopted  by 
utility  commissioners  or  other  authorized  official  bodies,  provided 
what  uses  of  water  shall  be  preferred  over  others  where  the  water 
supply  from  any  source  is  insufficient  to 'meet  all  needs,  usually  in 
the  following  order:  Domestic  use,  irrigation,  development  of  power. 
This  whole  bill  proceeds  upon  the  theory  that  the  Government  can 
fix  and  designate  the  use  to  which  the  water  shall  be  devoted,  in  spite 
of  contrary  rules  fixed  by  the  States.    Put  we  apprehend  that  if  such 


DEVELOPMENT   OF   WATER  POWEE.  13 

a  lease  as  is  proposed  were  made  and  the  power  plant  erected,  the 
State  could  at  any  time  require  that  the  water  used  for  the  purpose 
of  generating  power  be  applied  to  domestic  use  or  irrigation,  if  the 
water  is  needed  for  that  purpose,  and  the  lessee's  lease  and  plant 
rendered  valueless.  If  not,  then  the  Government  has,  by  its  lease 
and  the  application  of  the  water  to  a  single  and  specific  use,  deprived 
the  State  of  its  undoubted  sovereign  right  to  determine  the  uses  to 
which  the  water  shall  be  applied.  No  one  can  doubt  under  the  au- 
thorities we  have  cited  that  in  a  conflict  of  this,  kind  between  the 
two  governments  the  right  of  the  State  to  say  how  and  for  what 
purposes  water  shall  be  used  would  be  sustained. 

The  vice  of  this  first  section  runs  through  the  whole  bill.  All  of 
its  provisions  and  limitations  relate  wholly  to  the  use  of  the  water 
for  the  generation  of  power.  There  is  a  ifeeble  attempt  to  remedy 
this  defect  by  section  20,  added  as  an  amendment  by  this  committee, 
which  provides  that  the  plant  may  be  enlarged  by  the  lessee  ''for 
the  purpose  of  impounding  and  conveying  water  for  irrigation, 
mining,  municipal,  domestic,  and  other  beneficial  purposes."  But 
this  does  not  correct  the  evil.  It  is  a  mere  consent  of  the  Govern- 
ment that  the  water  may  be  used  for  other  purposes  if  the  lessee 
desires.  It  is  a  consent  given  in  a  matter  over  which  the  Govern- 
ment has  no  control  and  about  which  it  has  no  power  either  to 
give  or  withhold  consent.  And  its  consent,  when  given,  amounts  to 
nothing  as  affecting  the  use  to  which  the  water  shall  be  applied. 
That  is  a  matter  exclusively  within  the  power  and  jurisdiction  of 
the  States. 

There  is  another  apparent  effort  to  avoid  this  and  other  void  pro- 
visions in  the  bill  that  we  will  come  to  directly,  by  section  14,  which 
provides  that  it  shall  not  affect  or  interfere  with  the  laws  of  any 
State  relating  to  the  control,  appropriation,  use,  or  distribution  of 
water.  Either  this  provision  must  have  no  effect  at  aU  or  it  will 
nuUify  every  important  provision  of  the  biU,  because  the  whole  scope 
and  effect  of  the  bill,  as  we  have  shown,  directly  interferes  with  such 
laws  of  the  States. 

We  now  pass  to  the  consideration  of  other  provisions  of  the  bill 
equally  objectionable. 

1.    LIMITATION   OF   LEASE   TO   50   YEARS. 

Any  attempt  to  limit  the  life  of  a  plant  for  the  distribution  and 
use  of  water  is  wholly  at  variance  with  the  whole  theory  of  water 
rights  in  the  Western  States.  Where  water  is  put  to  use  for  irriga- 
tion, for  example,  the  use  must  be  perpetual  and  not  for  a  limited 
term,  otherwise  a  landowner  mi^ht  nave  the  use  of  the  water  until 
his  trees  are  matured  then  lose  his  supply,  bringing  destruction  upon 
his'  trees  and  his  crops.  To  prevent  this  it  is  provided  by  statute  in 
most,  if  not  all  of  the  irrigation  States,  that  if  a  public  service  corpora- 
tion shall  once  supply  water  to  land  for  irrigation  the  right  to  its 
continued  and  perpetual  use,  as  an  appurtenant  to  his  land,  attaches 
and  passes,  like  other  appurtenances,  by  a  conveyance  of  the  land. 
This  IS  not  so  important  as  applied  to  the  use  of  water  for  the  develop- 
ment of  power,  except  where  the  power  is  used,  as  it  is  very  generally, 
for  the  pumping  and  other  means  of  supplying  water  for  irrigation. 
In  that  case  it  is  equally  important  with  the  direct  supply  of  water 
for  irrigation. 


14  DEVELOPMENT    OF    WATER   POWER. 

2.    RIGHT  TO  USE   WATER  MUST  FIRST   BE   OBTAINED  FROM   STATE. 

It  is  provided  that  no  lease  shall  be  granted  until  the  right  to  the 
water  is  secured  from  the  State.  In  some  of  the  States  this  provision 
will  be  impossible  of  execution  because  no  right  to  the  water  can  be 
obtained  from  the  wState  until  the  plant  to  be  used  in  applying  it  to  a 
beneficial  purpose  is  completed  and  approved  b}^  the  State  authorities 
and  then  no  title  to  the  water  is  granted,  but  only  a  license  to  use  it. 
For  example,  in  California  a  water  commission  is  provided  for  by 
law.  This  commission  is  given  ijomplete  and  plenary  power  over  the 
appropriation  and  use  of  water  for  any  and  all  purposes.  The  com- 
mission is  authorized  to  investigate  aU  streams  and  determine  the 
amount  of  total  flow  of  the  different  streams  in  the  State,  the  amount 
appropriated  and  in  proper  and  necessar^jr  use,  and  the  quantity 
open  to  appropriation.  Anyone  desiring  to  appropriate  water  from 
any  stream  must  apply  to  this  commission  and  state  in  his  petition 
therefor  certain  required  facts.  Upon  a  proper  showing  being 
made,  a  permit  is  issued  allowing  the  construction  of  proper  works 
for  its  diversion  and  distribution. 

The  statute  provides : 

Sec.  16.  Every  application  for  a  permit  to  appropriate  water  shall  set  forth  the  name 
and  post-office  address  of  the  applicant,  the  source  of  water  supply,  the  nature  and 
amount  of  the  proposed  use,  the  location  and  description  of  the  prop>osed  head  works, 
ditch,  canal,  and  other  works;  the  proposed  place  of  diversion  and  the  place  where  it  is 
intended  to  use  the  water;  the  time  within  which  it  is  proposed  to  begin  construction, 
the  time  required  for  completion  of  the  construction,  and  the  time  for  the  complete 
application  of  the  water  to  the  proposed  use.  If  for  agricultural  purposes,  the  appli- 
cant shall,  besides  the  above  general  requirements,  give  the  legal  subdivisions  of 
the  land  and  the  acreage  to  be  irrigated,  as  near  as  may  be;  if  for  power  purposes,  it 
shall  give,  besides  the  general  requirements  prescribed  above,  the  nature  of  the  works 
by  means  of  which  the  power  is  to  be  developed,  the  head  and  amount  of  water  to  be 
utilized,  and  the  use  to  which  the  power  is  to  be  applied;  if  for  storage  in  a  reservoir, 
it  shall  give,  in  addition  to  the  general  requirements  prescribed  above,  the  height  of 
dam,  the  capacity  of  the  reservoir,  and  the  use  to  be  made  of  the  impounded  waters; 
if  for  municipal  water  supply,  it  shall  give,  besides  the  general  requirements  specified 
above,  the  present  population  to  be  served,  and,  as  near  as  may  be,  the  future  require- 
ments of  the  city;  if  for  mining  piu"poses,  it  shall  give,  in  addition  to  the  general 
requirements  prescribed  above,  the  nature  and  location  of  the  mines  to  be  served  and 
the  methods  of  supplying  and  utilizing  the  water.     (Cal.  Stat.,  1913„  pp.  1012,  1021.) 

The  statute  further  provides : 

Sec.  19.  Immediately  upon  completion,  in  accordance  with  law,  the  rules  and 
regulations  of  the  State  water  commission,  and  the  terms  of  the  permit,  of  the  project 
under  such  application,  the  holder  of  a  permit  for  the  right  to  appropriate  water  shall 
report  said  completion  to  the  State  water  commission.  The  said  commission  shall 
immediately  thereafter  cause  to  be  made  a  full  inspection  and  examination  of  the 
works  constructed  and  shall  determine  whether  the  construction  of  said  works  is  in 
conformity  with  law,  the  terms  of  the  approved  application,  the  rules  and  regulations 
of  the  State  water  commission,  and  the  permit.  The  said  water  commission  shall,  if 
said  determination  is  favorable  to  the  applicant,  issue  a  license  which  shall  give  the 
right  to  the  diversion  of  such  an  amount  of  water  and  to  the  use  thereof  as  may  be 
necessary  to  fulfill  the  purpose  of  approved  application.  (Cal.  Stat.,  1913,  pp.  1012, 
1023.) 

So  it  will  be  seen  that  in  California  the  provision  that  the  applicant 
must  first  secure  the  right  from  the  State  can  have  no  effect,  because 
his  right  can  not  be  passed  upon  imtil  the  whole  works  are  completed 
and  approved  by  the  water  commission.  And  if  not  approved,  the 
applicant  is  refused  a  license  to  divert  and  use  the  water.  And  under 
ihd  following  provision  of  the  statute  all  water  not  appropriated  in 


DEVELOPMENT   OF   WATER  POWER.  15 

accordance  with  the  laws  of  the  State  is  declared  to  belong  to  the 
people: 

And  all  waters  flomng  in  any  river,  stream,  canyon,  ravine,  or  other  natural  channel, 
excepting  so  far  as  such  waters  have  been  or  are  being  applied  to  useful  and  beneficial 
purpose  upon,  or  in  so  far  as  such  waters  are  or  may  be  reasonably  needed  for  useful 
and  beneficial  purposes  upon  lands  riparian  thereto,  or  otherwise  appropriated,  is  and 
are  hereby  declared  to  be  public  waters  of  the  State  of  California  and  subject  to  appro- 
priation in  accordance  with  the  provisions  of  this  act.  (Cal,  Stat.,  1913,  pp.  1012, 
1023.)  ~    - 

3.    PROVISION    AS    TO    TIME    AND    MANNER    OF     DOING    THE    WORK    OF 
ESTABLISHING   THE    PLANT. 

This  matter  is  completely  covered  by  State  laws,  and  the  provision 
conflicts  directly  with  those  laws.  The  California  statute  to  which 
we  have  referred  places  in  the  hands  of  the  water  commissioners  the 
power  to  determine  when,  where,  and  how  the  water  shall  be  applied 
and  continued  in  actual  use.     It  provides: 

Sec.  12.  The  State  water  commission  shall  have  authority  to,  and  may,  for  good 
cause  shown,  upon  the  application  of  any  appropriator  or  user  of  water  under  an  appro- 
priation made  and  maintained  according  to  law  prior  to  the  passage  of  this  act,  pre- 
scribe the  time  within  which  the  full  amount  of  the  water  appropriated  shall  be  applied 
to  a  useful  or  beneficial  purpose. 

And  certain  rules  for  determining  what  is  a  reasonable  prosecution 
and  completion  of  the  work  are  laid  down  for  the  guidance  of  the 
commission.     The  statute  further  provides: 

Sec.  18.  Actual  construction  work  upon  any  project  shall  begin  within  such  time 
after  the  date  of  the  approval  of  the^  application  as  shall  be  specified  in  said  approval, 
which  time  shall  not  be  less  than  sixty  days  from  date  of  said  approval,  and  the  con- 
Ftruction  of  the  work  thereafter  shall  be  prosecuted  with  due  diligence  in  accordance 
with  this  act,  the  terms  of  the  approved  application^  and  the  rules  and  regulations  of 
said  commission;  and  said  work  shall  be  completed  m  accordance  with  law,  the  rules 
and  regulations  of  the  State  water  commission  and  the  terms  of  the  approved  applica- 
tion, and  within  a  period  specified  in  the  permit;  but  the  period  of  completion  speci- 
fied in  the  permit  may,  for  good  cause  shown,  be  extended  by  the  State  water  com- 
mission. And  if  such  work  be  not  so  commenced,  prosecuted,  and  completed,  the 
water  commission  shall,  after  notice  in  writing  and  mailed  in  a  sealed,  postage-prepaid 
and  registered  letter  addressed  to  the  applicant  at  the  address  given  in  his  application 
for  a  permit  to  appropriate  water,  and  a  hearing  before  the  commission,  revoke  its 
approval  of  the  application.  But  any  applicant  the  approval  of  whose  application 
shall  have  been  thus  revoked  shall  have  the  right  to  bring  an  action  in  the  superior 
court  of  the  county  in  which  is  situated  the  point  of  the  proposed  diversion  of  the 
water  for  a  review  of  the  order  of  the  commission  revoking  said  approval  of  the  appli- 
cation. 

Thus  we  have  a  complete  system  of  regulation  in  the  State  intended 
to  secure  an  early  application  of  the  water  to  a  beneficial  use.  To 
this  end  work  is  required  to  be  commenced  in  not  less  than  stcty  days 
and  prosecuted  with  due  diligence,  under  rules  and  regulations  pre- 
scribed by  the  commission. 

This  bill  provides  in  section  2 : 

That  each  lease  made  in  pursuance  of  this  act  shall  provide  for  the  diligent,  orderly, 
and  reasonable  development  and  continuous  operation  of  the  water  power  subject 
to  market  conditions. 

In  other  words,  the  State,  admittedly  the  only  authority  having 
jurisdiction  over  the  matter,  provides  that  the  work  must  commence 
within  60  days,  be  prosecuted  with  diUgence,  and  completed  under 
rules  and  regulations  prescribed  by  the  water  commission.  By  this 
act  we  fix  no  time  when  the  work  shall  be  begun,  prosecuted,  and 


16  DEVELOPMENT   OF    WATER   POWER. 

completed,  but  require  it  to  be  done  as  the  Secretary  of  the  Interior 
shall  prescribe  in  a  lease  and  subject  to  market  conditions.  We  have 
shown  that  the  Federal  Government  has  no  power  or  jurisdiction  over 
this  matter  of  supplying  water  or  power  in  a  State ;  but  if  it  had,  this 
would  involve  a  conflict  of  authority  between  the  State  and  Federal 
Governments  that  must  lead  to  conflicts  and  be  intolerable. 

4.  ALLOWING  INTERSTATE   COMMERCE    COMMISSION  TO  FIX  RATES  AND- 
DETERMINE     THE     ISSUE     OF     STOCKS     AND     BONDS. 

It  is  possible  that  where  a  corporation  is  engaged  in  transmitting 
power  into  another  State  the  Federal  Government  would,  because  it 
IS  interstate  business,  have  power  to  fix  the  rates  to  be  charged 
against  consumers,  at  least  in  the  State  to  which  it  is  transmitted. 
It  is  submitted,  however,  that  it  has  no  such  power  respecting  power 
furnished  by  the  corporation  in  its  own  State.  And  in  no  event 
could  the  Government  justify  itself  in  assuming  to  control  the  issue 
of  stocks  and  bonds  of  a  corporation  as  against  the  laws  of  the  State 
of  its  creation.  This  would  be  an  unwarranted  exercise  of  authority 
based  upon  the  mere  fact  that  the  corporation  is  its  tenant,  holding 
Government  land  within  the  State.  Ilef erring  again  to  California^ 
the  railroad  commission  of  the  State  has  authority,  conferred  upon  it 
by  statute,  to  fix  and  determine  not  only  the  rates  to  be  charged  bj^^  a 
corporation  furnishing  power  within  the  State,  but  to  determine  its 
bond  and  stock  issue  and  other  indebtedness.  In  other  words,  that 
commission  has  full  and  ample  power  to  deal  with  the  whole  subject. 
Now  it  is  proposed  by  this  bill  to  give  the  same  power  to  a  Federal 
commission.  This  necessarily  brings  the  two  into  direct  conflict. 
The  power  can  not  be  exercised  by  both  Governments.  It  belongs  of 
right  to  the  State  where  it  is  organized  and  doin^  business  and  deal- 
ing with  the  water  that  belongs  to  the  State  and  is  being  supplied  to 
its  people.  There  can  be  no  just  or  valid  claim  that  this  power  be- 
longs to  the  Government,  or  can  properly  and  legally  be  vested  in  it 
by  statute. 

5.    AUTHORIZING   COMBINATION   OF   PLANTS   OR   LINES. 

The  bill  provides  in  section  3  that  the  Secretarjr  of  the  Interior^ 
in  his  discretion,  may  allow  'Hhe  physical  combination,  distribution, 
and  use  of  power  or  energy  under  this  act  or  under  leases  given  here- 
under not  in  violation  of  law.'^ 

By  what  possible  right  could  the  Government,  as  a  mere  lessor  of 
land,  grant  or  withhold  any  such  privilege  ?  It  is  completely  within 
the  control  and  jurisdiction  of  the  State. 

Referring  again  to  California.  In  that  State  the  water  can  be 
diverted  and  used  only  under  a  license  issued  by  the  water  commis- 
sion after  the  works  are  completed,  and  for  the  purposes  and  in  the 
manner  the  commission  shall  determine.  And  thereafter  the  exer- 
cise of  the  right  is  under  complete  control  of  the  State  authorities, 
as  we  have  stated.  The  statute,  after  providing  for  the  issuance  of 
the  license,  further  provides: 

All  permits  and  licenses  for  the  appropriation  of  water  shall  be  under  the  terms 
and  conditions  of  this  act,  and  shall  be  effective  for  such  time  as  the  water  actually 
appropriated  under  such  permits  and  licenses  shall  actually  be  used  for  the  useful 


DEVELOPMENT   OF    WATEB  POWER.  If 

and  beneficial  purpose  for  which  said  water  was  approprmted,  but  no  longer;  and 
every  such  permit  or  license  shall  include  the  enumeration  of  conditions  therein 
which  in  substance  shall  include  all  of  the  provisions  of  this  section  and  likewise  the 
statement  that  any  appropriator  of  water,  to  whom  said  permit  or  license  may  be 
issued,  shall  take  the  same  subject  to  such  conditions  as  therein  expressed. 

The  commission  has  ample  power  to  determine  whether  there  shall 
be  combinations  of  plants  or  lines  or  not.  They  are  fully  authorized 
to  say,  in  the  license  granted,  whether  this  shall  be  done  or  not. 
And  any  effort  to  place  this  power,  in  whole  or  in  part,  in  a  Federal 
officer  is  in  plain  violation  of  the  rights  of  the  States  and  a  usurpation 
of  power. 

6.  FORBIDDING  THE  INCUMBRANCE  OF  THE  PROPERTY  LEASED. 

Section  4  of  the  bill  provides  against  the  incumbrance  of  the 
property  leased  if  within  a  Territory,  or  where  the  intention  is  to 
transmit  power  into  two  or  more  States,  except  upon  the  approval 
of  the  Secretary  of  the  Interior  for  certain  purposes. 

This  is  much  the  same  as  the  last  previous  question  presented.  It 
is,  where  the  property  leased  is  within  a  State,  and,  it  may  be  the 
corporation  organized  under  the  laws  of  that  State,  the  assumption  of 
a  power  that  belongs  to  and,  in  some  of  the  States,  is  being  actively 
and  satisfactorily  exercised.  It  is  no  part  of  the  authority,  power, 
or  duty  of  the  Federal  Government  and  can  not  be  acquired  by  the 
mere  proprietary  ownership  and  leasing  of  lands.  The  incumbrance 
may  be  necessary  to  carry  on  the  work  authorized  and  required  by  the 
State  to  complete  the  works  and  put  the  water  which  it  owns  to  a 
beneficial  use.  This  matter  of  determining  whether  the  property 
devoted  to  a  public  use  shall  or  shall  not  be  incumbered,  and  if  so,  in 
what  amount,  belongs  exclusively  to  the  State  and  can  not  be  exercised 
legally  by  the  Government.  To  do  so  is  a  plain  infringement  of  the 
sovereign  rights  of  the  States.  It  may  prevent  a  public  improve- 
ment that  the  people  of  the  State  need  and  have  the  right  to  Jiave. 

7.  PROVISION  AUTHORIZING  THE  GOVERNMENT  TO  TAKE  OVER  THB 

LAND  AT  THE  EXPIRATION  OF  THE  LEASE.      _      e    t  *i 

Sii&Cjroft  Libi 

By  this  provision  the  Government  is  authorized  to  take  over  not 
only  the  land  it  has  leased  but  a  water-power  plant  to  be  used,  and 
which  must  continue  to  be  used,  for  tne  generation  of  power  for 
public  use  and  to  become  a  public-utility  corporation,  obligated  to 
operate  the  plant  and  supply  power  to  the  public.  When  it  assumes 
this  function,  it  becomes  at  once  bound  by  the  contracts  and  other 
obligations  of  the  lessee  to  supply  the  power.  It  at  once  becomes 
amenable  to  the  State  authorities  having  power  to  regulate  its  busi- 
ness. If  not  then,  the  effect  is  to  deprive  the  State  of  the  right  to 
regulate  the  use  of  the  waters  of  the  State  as  an  exercise  of  its  sov- 
ereign power.  It  may  well  be  asked  how,  when  the  National  Govern- 
ment becomes  a  utility  corporation,  the  State  can  exercise  as  against 
it  the  power  it  has  to  regulate  rates  or  otherwise  control  the  use  and 
operation  of  the  plant,  even  to  the  extent,  as  it  may,  of  taking  away 
the  use  of  the  water  and  requiriag  it  to  be  used  for  other  purposes 
more  necessary  for  the  public  good  than  the  development  of  power. 


18  DEVELOPMENT  OF   WATEB  POWER. 

Neither  the  State  nor  any  consumer  under  the  system  could  sue  the 
Government  or  compel  it  in  any  way  to  perform  its  duty  as  a  public- 
service  corporation.  This  provision,  if  not  illegal,  is,  it  seems  to  us, 
absurd.  It  would  lead  to  untold  and  innumerable  conflicts  of  gov- 
ernmental authority  and  comphcations. 

8.    MAKING    CONTRACTS    FOR    POWER. 

Section  7  of  the  bill  provides  for  the  making  of  contracts  for  power 
upon  the  approval  of  the  proper  State  authority  and  of  the  Secretary 
of  the  Interior. 

We  think  we  have  demonstrated  above  that  the  Federal  Govern- 
ment has  no  power  or  jurisdiction  over  this  subject  within  a  State. 
In  this  instance  the  right  of  the  State  to  deal  with  it  is  recoj^nized, 
but  the  Secretary  of  the  Interior  is  given  the  power  to  nullify  the 
action  of  the  State  in  giving  its  approval  by  refusing  to  give  his  own. 
So  action  by  the  Secretary  of  the  Interior,  an  officer  who  has  no 
jurisdiction  in  the  matter,  and  can  be  given  none  legally,  is  made 
necessary  to  any  such  action  on  the  part  of  the  utiUty  corporation, 
for  no  better  reason  than  that  this  particular  corporation  rents  its 
power  site  from  the  Government.  Other  power  corporations  are  not 
subject  to  anv  such  Hmitation  or  double  regulation.  The  State  cnn 
not  thus  be  shorn  of  its  sovereign  power  over  the  subject  matter  by 
the  Government  in  its  capacity  of  a  real  estate  dealer.  It  can  not  be 
possible  that  a  renter  from  the  Government  must  be  subject  to  two 
regulating  powers  and  two  rules  of  regulation  and  other  corporations 
owning  their  power  sites  or  leasing  them  from  some  one  else  subject 
to  but  one.  The  mere  statement  of  some  of  the  results  should  be 
sufficient  to  condenm  this  provision. 

9.   OBJECTIONABLE  MEANS  OF  ARRIVING  AT  RENT  TO  BE  PAID. 

The  amount  of  rent  to  be  paid  for  the  land  to  be  used  as  a  power 
site  is  not  fixed  by  the  rental  or  other  value  of  the  land,  but  the 
amount  of  power  produced  by  the  use  of  the  water  belonging  to  the 
State.  The  land  in  and  of  itself  is  practically  of  no  value.  The 
profit,  if  any,  resulting  from  the  use  of  the  water  depends  upon  the 
rates  collected  by  the  corporation  for  the  powers,  which  must  be 
fixed  by  the  State,  if  by  anybody.  In  fixing  the  rates  the  State  must 
allow  the  corporation  the  amount  of  rental  it  is  required  to  pay  to 
the  Government  as  a  part  of  its  yearly  operating  expenses.  The 
consumers  must  pay,  not  the  interest  on  this  amoimt  only,  as  a 
part  of  the  capital  mvestment,  but  must  pay  it  all  each  year  as  a 
part  of  the  fixed  annual  charges  of  the  company.  A  reasonable 
charge  by  the  Government  for  the  use  of  its  land  may  be  justified  as  a 
real  estate  transaction.  It  is  not  the  exercise  of  sovereign  power. 
It  is  nothing  but  a  contract  of  lease,  the  same  in  all  material  respects 
as  a  transaction  of  a  like  kind  by  a  private  undividual,  with  the 
Secretary  of  the  Interior  acting  as  the  real  estate  agent.  This  should 
be  kept  constantly  in  mind.  But  the  basis  upon  which  the  rental 
is  founded  is  a  false  and  unjust  one.  It  compels  the  consumers  of 
water  belonging  to  the  State  to  pay  a  charge  to  the  Government  that 
it  is  unconscionable  to  make.  It  compels  the  people  of  the  State  to 
pay  the  Government  for  the  use  of  the  water  that  belongs  to  them 


DEVELOPMENT   OF   WATEK  POWER.  19 

and  to  which  the  Government  has  no  right  and  over  which  it  has  no 
power  nor  j  urisdic tion .     The  whole  thing  is  unj  ust  and  unconscionable. 

10.    DISPOSITION   OP  PROCEEDS   OF  THE   LEASE. 

The  injustice  of  the  rental  founded  on  the  use  of  the  water  is 
made  clear  and  accentuated  by  the  provision,  in  the  eighth  section  of 
the  bill,  that  the  proceeds  shall  be  paid  one  half  to  the  State  and  the 
other  half  to  the  Keclamation  Service.  This  is  clearly  unjust  to  the 
State.  The  use  of  the  water  that  belongs  wholly  to  the  State  is  the 
valuable  thing.  The  Government  has  no  interest  in  the  water  and 
is  entitled  to  none  of  its  benefits.  But  it  assumes  to  rent  it  with  the 
practically  worthless  land,  the  people  of  the  State  pay  back  the  whole 
of  it  to  the  corporation,  and  the  Government  provides  how  the  rental 
shall  be  divided  without  the  approval  or  consent  of  the  State.  This 
is  extending  the  power  of  the  Federal  Government  over  the  sovereign 
rights  of  the  States  with  a  vengeance. 

11.    CONTROL    GIVEN    TO    THE    GOVERNMENT     WHERE     STATE     HAS     NO 

UTILITY   COMMISSION. 

In  section  9  of  the  bill  it  is  provided  that  where  a  State  has  no 
utility  commission  or  other  authority  having  power  to  regulate  rates 
and  service  of  electrical  energy  and  the  issuance  of  stock  and  bonds 
by  public-utility  corporations  engaged  in  power  development,  these 
powers  shall  be  vested  in  the  Secretary  of  the  Interior  or  committed 
to  such  body  as  may  be  authorized  by  Federal  statute  until  such  time 
as  the  State  shall  provide  a  commission  or  other  authority  for  such 
regulation  and  control. 

This  attempt  to  vest  in  an  officer  of  the  Federal  Government  the 
power  to  control  the  power-developing  corporations  in  their  service 
and  to  determine  their  issuance  of  stock  and  bonds  is  in  violation  of 
the  rights  of  the  States  and  unconstitutional.  We  have  shown  that 
the  Federal  Government  has  no  power  whatever  to  deal  with  these 
questions  within  a  State  and  that  the  power  can  not  be  created  or 
conferred  by  statute.  The  fact  that  the  State,  for  the  time  being, 
does  not  exercise  the  power  can  not  have  the  effect  of  vesting  it  in 
the  National  Government.  As  the  power  of  the  Government  can  be 
conferred  only  by  the  Constitution  and  as  this  was  not  so  conferred, 
it  is  reserved  to  the  States.     This  we  submit  is  beyond  question. 

12.    AUTHORITY   TO    EXAMINE    BOOKS   OF   LESSEE. 

By  section  11  the  Secretary  of  the  Interior  is  given  authority  to 
examine  the  books  and  accounts  of  the  lessees  and  to  require  them 
to  submit  ''statements,  representations,  or  reports,  including  informa- 
tion as  to  cost  of  water  rights,  lands,  easements,  and  other  property 
acquired,  production,  use,  distribution,  and  sale  of  energy;  all  of 
which  statements,  representations,  or  reports  so  required  shall  be 
upon  oath,  unless  otherwise  specified,  and  in  such  form  and  upon 
Buch  blanks  as  the  Secretary  of  the  Interior  may  require.'* 

This  again  is  a  plain  usurpation  of  the  power  that  belongs  to  the 
States.  Both  the  water  commission  and  the  railroad  commission  of 
the  State  of  California,  under  its  laws,  have  the  right  to  require  all 


20  DEVELOPMENT   OF    WATER  POWER. 

of  the  information  that  is  provided  for  in  this  section.  This  would 
subject  a  corporation  that  rents  from  the  Federal  Government  to 
double  examinations  and  double  reports  for  which  the  consumers 
under  that  particular  system  must  pay  while  other  corporations,  not 
renting  from  the  Government,  would  be  subject  to  only  one  examina- 
tion and  one  report.  Besides,  the  Government,  as  a  mere  lessor,  of 
the  property  used  as  a  power  site,  has  no  interest  whatever  in  any  of 
the  things  that  are  required  to  be  reported  upon  by  this  section  of 
the  bill.  As  it  is  proposed  to  base  the  rents  to  be  paid  for  the  land 
upon  the  amount  of  power  developed — if  that  be  legal  and  justified, 
the  Government  has  the  right  to  satisfy  itself  of  the  amount  of  power 
developed.  It  has  no  interest  further  than  that,  and  any  effort  to 
interfere  with  the  business  of  the  corporation  or  the  operation  of  its 
plant,  which  belong  alone  to  the  State,  is  entirely  unauthorized. 

13.    FORFEITURE    OF   LEASE. 

Section  12  provides  that  this  "lease  may  be  forfeited  and  canceled, 
by  appropriate  proceedings,  in  a  court  of  competent  jurisdiction 
whenever  the  lessee,  after  reasonable  notice,  in  writing,  as  prescribed 
in  the  lease,  shall  fail  to  comply  with  the  terms  of  this  act  or  with  such 
conditions  not  inconsistent  therewith  as  may  be  specifically  recited 
in  the  lease." 

This  would  place  the  lessee  in  a  very  unhappy  situation.  As  the 
State  has  the  undoubted  power  to  regulate  the  use  of  the  water  and 
the  operation  of  the  plant,  the  lessee  might  be  compelled  by  State 
regulations  to  violate  numerous  terms  provided  for  in  the  lease  or  the 
regulations  of  the  Secretary  of  the  Interior.  Where  the  power  exer- 
cised by  the  Government — and  that  authority  would  be  exercised  by 
the  Secretary  of  the  Interior  by  this  bill — and  the  State  commission 
should  conflict,  the  unfortunate  lessee  would  have  to  take  his  chances 
of  being  prosecuted  by  the  State  authorities  and  his  right  to  furnish 
power  forfeited,  or  to  comply  with  the  rules,  regulations,  and  orders 
of  the  Federal  Government  whereby  his  lease  may  be  subject  to  foi^ 
feiture.  This  perhaps  shows  quite  as  clearly  as  anything  else  why  it 
is  utterly  impossible  that  the  provisions  of  this  statute  and  the  rules 
and  regulations  that  may  be  prescribed  by  the  Secretary  of  the  Interior 
can  not  by  any  possibihty  be  allowed  to  stand  as  against  the  sov- 
ereign power  of  the  State  to  regulate  and  control  all  these  things. 

Can  the  Government  hy  a  system  of  long  leases  perpetuate  its  owner- 
ship  in  the  States  of  untaxed  lands 'i. — We  have  shown  by  the  decided 
cases  that  the  Government  owns  the  public  lands  as  a  proprietor  and 
not  in  its  sovereign  capacity.  This  is  too  clearly  and  firmly  estab- 
lished to  admit  of  doubt.  In  a  sense  the  Government  owns  the  land 
in  trust  to  dispose  of  it  for  use  by  the  citizens  of  the  country.  Laws 
have  been  enacted,  from  time  to  time,  providing  for  their  disposition. 
Until  now  the  national  policy  has  been  to  convey  the  absolute  title 
to  the  land  in  whatever  way  it  may  be  disposed  of.  But  it  is  now 
proposed  to  hold  the  title  to  the  land  in  the  Federal  Government  and 
lease  it  on  long  leases.  This  would  be  a  radical  change  in  Govern- 
mental policy.  It  is  a  very  important  one  to  the  States.  The  land 
in  the  hands  of  the  Government  is  not  subject  to  taxation  by  the 
States. 


DEVELOPMENT   OP    WATBB  POWER.  21 

In  the  hearings  by  the  committee  this  startling  statement  was  made 
by  the  Senator  from  Colorado  (Mr.  Shafroth) : 

I  believe  that  any  leasing  bill  for  the  public  domain  or  resources  thereof  is  a  direct 
attack  on  the  sovereignty  of  the  States  containing  the  same,  because  it  must  result  in 
a  perpetual  ownership  of  the  property  in  the  United  States  Government.  Inasmuch 
as  taxes  can  not  be  imposed  upon  property  owned  by  the  Federal  Government,  it 
means,  to  carry  it  to  its  ultimate  result,  the  depriving  of  the  States  of  their  means  of 
existence. 

I  want  to  call  the  attention  of  the  committee  to  a  list  contained  in  an  article  by 
Mr.  W.  V.  M.  Powelson  of  the  number  of  acres  of  land  in  the  various  Western  States 
now  in  the  ownership  of  the  Government.  In  Arizona,  92  per  cent  of  the  lands  within 
the  area  of  that  State  are  in  Government  ownership;  California,  52.58  per  cent;  Colo- 
rado, 56.67  per  cent;  Idaho,  83.80  per  cent;  Montana,  65.80  per  cent;  Nevada,  87.82 
per  cent;  New  Mexico,  62.83  per  cent;  Oregon,  51  per  cent;  Utah,  80.18  per  cent; 
Washington,  40  per  cent;  Wyoming,  68  per  cent. 

Thus  it  is  shown  that  lands  in  the  several  Western  States  ranging 
from  40  to  92  per  cent  are  held  in  Government  ownership  and  not 
subject  to  taxation  by  the  State.  And  it  is  proposed  by  this  and 
other  bills  pending  in  the  Senate,  making  up  the  system  of  con- 
servation proposed  to  be  inaugurated,  to  perpetuate  this  condition 
and  perpetually  deprive  the  States  of  the  right  to  tax  this  large  per- 
centage of  the  lands  within  its  borders  to  maintain  and  support  the 
State  government.  Whether  the  Government  has  the  power  to  deal 
with  its  lands  in  that  way  or  not,  it  must  be  seen  by  any  observing 
person  that  it  will  be  a  rank  injustice  to  the  States  in  which  these 
lands  are  situated.  But  we  go  further  and  maintain  that  the  Gov- 
ernment, holding  the  public  lands  in  trust  to  dispose  of  them,  has 
no  right  or  authority  to  thus  perpetuate  its  ownership  of  nontaxable 
lands  and  withhold  them  from  purchase  by  the  people  of  the  country 
where  the  title  should  be  vested. 

Referring  again  to  the  case  of  Pollard's  Lessee  v.  Hagan  (3  How., 
212),  one  of  the  leading  cases  on  the  subject,  and  from  which  we  have 
quoted  above,  it  will  be  seen  that  as  to  the  public  domain,  not  in- 
cluding lands  acquired  for  permanent  use  for  the  erection  of  forts, 
magazines,  arsenals,  dockyards,  and  other  needful  buildings  in  the 
District  of  Columbia,  the  right  and  ownership  of  the  land  by  the 
Government  is  'temporary,"  and  so  it  has  always,  up  to  this  time, 
been  considered.  The  theory  and  understanding  has  always  been 
that  public  lands  are  held  by  the  Government  temporarily  and  in 
trust  to  dispose  of  them  and  vest  the  permanent  fee  simple  title  in 
those  who  might  acquire  them  under  rules  and  regulations  prescribed 
by  Congress.  It  was  never  intended  that  title  to  such  lands  should 
be  held  permanently  in  the  Government,  and  in  our  judgment  any 
law  that  vests  this  right  to  permanently  hold  the  lands  iree  from  State 
taxation  will  be  an  open  violation  of  the  trust  under  which  the  lands 
are  held  and  of  the  sovereign  rights  of  the  States. 

At  the  expense  of  further  extending  this  already  long  report,  w© 
quote  again  a  short  extract  from  the  case  last  mentioned: 

We  will  now  inquire  into  the  nature  and  extent  of  the  right  of  the  United  States  to 
these  lands,  and  whether  that  right  can  in  any  way  affect  or  control  the  decision  of  the 
case  before  us.  This  right  originated  in  voluntary  surrenders,  made  by  several  of  the 
old  States,  of  their  waste  and  unappropriated  lands,  to  the  United  States,  under  a  reso- 
lution of  the  old  Congress  of  the  6th  of  September,  1780,  recommending  such  surrender 
and  cession  to  aid  in  paying  the  public  debt  incurred  by  the  War  of  the  Revolution. 
The  object  of  all  the  parties  to  these  contracts  of  cession  was  to  convert  the  land  into 
money  for  the  payment  of  the  debt  aud  to  erect  new  States  over  tiie  territory  thus 


22  DEVELOPMENT   OF    WAXEE   POWER. 

ceded;  aiid  as  soon  as  these  purposes  could  be  accomplished  the  power  of  the  United 
States  over  these  lands,  as  property,  was  to  cease. 

Whenever  the  United  States  shall  have  fully  executed  these  trusts  the  municipal 
sovereignty  of  the  new  States  will  be  complete  throughout  their  respective  borders, 
and  they  and  the  original  States  will  be  upon  an  equal  footing  in  all  respects  what- 
ever. We  therefore  think  the  United  States  hold  the  public  lands  within  the  aew 
States  by  force  of  the  deeds  of  cession  and  the  statutes  connected  with  them,  and 
not  by  any  municipal  sovereignty  which  it  may  be  supposed  they  possess  or  have 
reserved  by  compact  with  the  new  States  for  that  particular  purpose. 

It  clearly  appears  from  this  decision  that  the  title  of  the  Govern- 
ment in  such  lands  is  not  permanent,  but  ceded  only  for  the  purpose 
of  disposing  of  them,  and  that  the  Government  can  not  make  its 
title  permanent  or  deprive  itself  for  any  length  of  time  of  the  power 
to  comply  with  the  obhgation  of  its  trust  to  dispose  of  them. 

Will  the  Mil,  if  enacted,  bring  the  desired  results? — As  stated  in  the 
beginning,  the  purpose  of  this  proposed  legislation,  as  stated  by  the 
majority  of  the  committee,  is  to  bring  about  a  speedier  development 
of  our  undeveloped  water  power.  It  may  be  said  that  this  is  a  purpose 
not  within  the  power  or  jurisdiction  of  the  Federal  Government.  The 
whole  purpose  of  the  bill,  as  thus  stated,  is  beyond  the  power  of  the 
Government.  It  has  no  undeveloped  water  power.  It  is  only  a  land- 
owner in  the  States  and  nothing  else.  The  development,  as  well  as 
the  regulation  and  control  of  undeveloped  water  and  water  power,  is 
a  purely  State  matter.  The  States  alone  have  power  to  deal  with  the 
subject.  The  Government  may,  in  its  generosity,  offer  its  land  to 
the  State,  as  any  other  landowner  might  do,  to  aid  the  State  to  develop 
its  natural  resources.  It  can  not  constitutionally  do  anything  more. 
The  assumption  of  some  conservationists  that  the  National  Govern- 
ment has  anything  to  do,  as  a  Government,  with  the  development  of 
the  natural  resources  in  a  State  is  without  the  slightest  foundation. 
As  a  landowner  it  may  be  interested  in  such  development  as  a  means 
of  increasing  the  value  of  the  land  it  holds  in  trust  for  the  people, 
but  nothing  more.  It  may  hinder  the  State  in  its  efforts  to  develop 
its  resources  by  withholding  its  lands,  available  for  dam,  reservoir,  or 
power  sites,  or  by  placing  burdensome  terms  and  conditions  of  sale 
or  lease  of  its  lands,  if  it  has  power  to  lease  them,  as  would  make  it 
impossible  or  impracticable  to  use  them  for  such  purposes.  But  any 
private  landowner  might  do  the  same  thing  and  with  the  same  effect. 

And  we  submit  that  this  is  just  what  Congress  will  do  for  the  Gov- 
ernment if  it  enacts  this  bill.  The  terms  upon  which  the  Secretary 
of  the  Interior  is  authorized  to  lease  land  for  power  purposes  are  so 
unreasonable  and  burdensome  and  so  clearly  in  conflict  with  State 
rights  and  State  laws  as  to  prevent  any  prudent  business  man  from 
investing  any  money  in  a  power  site  in  any  State.  He  would  be 
imable  to  determine  whether,  in  constructing  and  managing  his 
plant,  he  would  be  bound  by  the  Federal  or  State  law,  or  both  where 
they  are  not  in  direct  conflict.  If  he  obeyed  one,  in  many  instances, 
as  we  have  pointed  out,  he  would  violate  the  other.  A  compliance 
with  the  State  law  would  in  some  cases  forfeit  his  lease.  On  the 
other  hand,  if  he  followed  the  provisions  of  the  lease,  particularly  as 
to  the  time  of  commencing  and  completion  of  his  plant,  he  would,  in 
California  at  least,  forfeit  his  right  to  the  water,  the  really  valuable 
thing,  and  a  license  to  use  the  water  would  have  to  be  denied  him  for 
failure  to  comply  with  the  State  laws.  This  would  be  true  in  other 
States  as  well.     We  have  used  California  and  its  laws  only  as  an 


DEVELOPMENT  OF   WATER  POWER.  23 

illustration  of  the  conflicts  that  would  arise  between  the  Government 
and  the  States  if  this  bill  should  pass.  The  same  conflicts  would 
arise  in  the  other  Western  States. 

The  present  law  relating  to  the  use  of  public  lands  for  power  and 
irrigation  purposes  is  entirely  inadequate  because  of  its  uncertainty. 
But  this  proposed  legislation  would  be  infinitely  worse  because  it  is 
so  certainly  and  fatally  wrong.  It  would,  if  enacted,  soon  put  an 
end  to  any  development  of  water  power.  Witness  after  witness, 
practical  and  experienced  men,  appeared  before  the  committee  and 
pointed  out  that  the  law  would  be  impractical  and  unrevokable  and 
prevent  investments  in  enterprises  of  this  kind,  and  the  reasons  were 
clearly  pointed  out.  On  the  other  hand,  we  had  information  to  the 
contrary  from  Government  officials  who  sincerely  believed  the  law 
would  be  beneficial ;  but  they  could  only  theorize  about  a  very  prac- 
tical matter.  They  had  no  practical  knowledge  on  the  subject. 
There  were  others  who  appeared  in  support  of  the  bill  equally  sincere, 
but  without  knowledge.  And  the  friends  of  the  bill  made  no  effort 
to  sustain  its  constitutionality  or  to  defend  it  against  the  legal  objec- 
tions that  we  have  been  pointing  out  in  this  report. 

We  have  given  but  httle  attention  to  the  merely  business  objections 
made  to  the  bill.  To  our  minds  the  legal  objections  to  it  are  so 
numerous  and  so  conclusive  that  this  is  unnecessary.  As  to  this 
phase  of  it  we  refer  Senators  to  the  pubhc  hearings  that  were  full  and 
fair.  The  friends  of  the  bill  gave  its  opponents  every  opportunity 
to  point  out  and  support  their  objections  to  it.  These  nearmgs  on  so 
important  a  matter  should  receive  the  careful  attention  of  every 
Senator  who  desires  to  be  informed  on  the  subject. 

For  the  reasons  we  have  pointed  out  and  for  others  that  may  be 
developed  later  on,  we  could  not  concur  in  the  favorable  report  on 
the  bill,  and  submit  that  it  should  not  pass. 

Reed  Smoot. 
John  D.  Works. 
C.  D.  Clark. 


VIEWS  OF  SENATOR  CHARLES  S.  THOMAS. 

I  am  unable  tx)  accept  the  reasoning  of  the  minority  report  in  toto. 
but  agree  in  the  conclusions  announced.  My  own  view  of  the  proper 
8olution  of  the  so-called  water-power  problem  in  the  ''public-land 
States"  is  the  transfer  by  the  Government  to  the  States  wherein  they 
are  located  of  all  power  sites  upon  the  public  domain  in  trust,  and,  con- 
ditioned upon  their  development  by  the  transferers  for  the  use  and 
benefit  of  the  pubUc  at  rates  sufficient  to  defray  the  cost  of  construc- 
tion and  operation,  the  sites  to  be  forfeited  to  the  General  Govern- 
ment upon  noncompHance  with  the  terms  and  conditions  of  the  trust. 
This  insures  development,  prevents  monopoly,  and  assures  to  the 
people  an  adequate  supply  of  cheap  power.  It  is  conservation  in  the 
true  meaning  of  the  term. 

C.  S.  Thomas. 
24 


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